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Case reference

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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
PLANNING COURT

BETWEEN:

Mr Russell Gray (on behalf of the Old Bermondsey Neighbourhood Forum)
Claimant
and

Southwark London Borough Council
Defendant

_________________________________

STATEMENT OF FACTS AND GROUNDS

_________________________________

INTRODUCTION

1. This is an application made by Mr Russell Gray on behalf of the Old Bermondsey

Neighbourhood Forum (“OBNF”, formerly OBVNF) for permission to challenge by way

of judicial review the decision made by Southwark London Borough Council (“the

Council”), dated 26th February 2018, to refuse to extend OBNF’s Neighbourhood Area

to the North by including within it the areas between Druid Street, Crucifix Lane,

Snowsfields and Newcomen Street to the South and Tooley Street to the North.

LEGISLATIVE AND POLICY FRAMEWORK

2. Section 116 of the Localism Act 2011 made provision for Schedule 9 to the Act to have

effect. That Schedule introduced important amendments to preceding legislation,

principally by inserting new provisions into the Town and Country Planning Act 1990

(“the 1990 Act”), after section 61B.

3. Amongst other inserted provisions is new section 61F, which sets out the considerations

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which a Council must take into account when determining whether or not to designate an

organisation or body as a Neighbourhood Forum. Subsection (7)(a)(iii) requires the Council

to have regard to the “desirability” of designating an organisation “whose purposes reflect

(in general terms) the character of that area”.

4. As for the designation of a “Neighbourhood Area” is concerned, section 61G provides inter
alia as follows:

“61G

(1) In determining an application the authority must have regard to -
(a) the desirability of designating the whole of the area of a Parish Council as a
Neighbourhood area, and
(b) the desirability of maintaining the existing boundaries of areas already
designated as neighbourhood areas.”

5. Section 61G(4) contains the only direct legislative guidance as to the exercise of a Council’s
discretion to designate a Neighbourhood Area, which is the “desirability” of designating the

whole of the area of a Parish Council and the “desirability” of maintaining existing

boundaries of areas already designated as Neighbourhood Area. It is plain, however, in the

light of section 61F(7)(a)(iii) above, that regard must also be had to “the character of that

area” when exercising that discretion.

6. Further guidance in this regard is given in Paragraph: 033 Reference ID: 41-033- 20140306 of

the Planning Practice Guidance (PPG) as follows:

“What could be considerations when deciding the boundaries of a
neighbourhood area?

The following could be considerations when deciding the boundaries of a
neighbourhood area:

• village or settlement boundaries, which could reflect areas of planned
expansion

• the catchment area for walking to local services such as shops, primary
schools, doctors’ surgery, parks or other facilities

• the area where formal or informal networks of community based groups
operate

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• the physical appearance or characteristics of the neighbourhood, for example
buildings may be of a consistent scale or style

• whether the area forms all or part of a coherent estate either for businesses or
residents

• whether the area is wholly or predominantly a business area

• whether infrastructure or physical features define a natural boundary, for
example a major road or railway line or waterway

• the natural setting or features in an area

• size of the population (living and working) in the area

Electoral ward boundaries [P.248] can be a useful starting point for discussions
on the appropriate size of a neighbourhood area; these have an average
population of about 5,500 residents.”

7. Paragraph: 035 Reference ID: 41-035-20161116 of the PPG makes it clear that when

designating a Neighbourhood Area, a Local Planning Authority:

“… should avoid pre-judging what a qualifying body may subsequently decide
to put in its draft Neighbourhood Plan or Order. It should not make assumptions
about the Neighbourhood Plan or Order that will emerge from developing,
testing and consulting on the draft Neighbourhood Plan or Order …”

8. Further, Paragraph: 036 Reference ID: 41-036-20140306 of the PPG makes it clear that a

Neighbourhood Area can include sites viewed as “strategic” by the Local Planning

Authority:

“A Neighbourhood Area can include land allocated in a Local Plan as a strategic
site. Where a proposed Neighbourhood Area includes such a site, those wishing
to produce a Neighbourhood Plan or Order should discuss with the Local
Planning Authority the particular planning context and circumstances that may
inform the Local Planning authority’s decision on the area it will designate.”

9. The specific guidance that strategic sites can be included in a Neighbourhood Area was

inserted into the PPG on 6th March 2014, on the same day the judgment of the Court of

Appeal was given in R (Daws Hill Neighbourhood Forum) v. Wycombe District Council

[2014] EWCA Civ 228, and in order to ensure that Local Planning Authorities were made

quite aware that even though it had been held in that such sites could be excluded from
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Neighbourhood Planning, it was national policy guidance that they could, properly, be

included.

10. The above national policy guidance must, in turn, be seen against the following backcloth:

(1) Any Neighbourhood Development Plan and/or Order will have to accord

with the strategic vision of the Local Planning Authority in any event – see:

Schedule 10 to the Localism Act, which inserts new Schedule 4B into the 1990

Act; and

(2) Since Neighbourhood Planning is intended to enable Neighbourhood Forums

to use the statutory powers created by the 2011 Act to exercise influence over

decisions that may make “a big difference to the lives of local residents” (in

the words of the Government’s “A Plain English Guide to the Localism Act”),

it is particularly apt that such sites be included in Neighbourhood Areas.

FACTUAL BACKGROUND

11 In September and December 2012 two organisations - The Bermondsey Village Action

Group (BVAG) and the Bermondsey Neighbourhood Forum (BNF) - submitted separate

applications for the designation of Neighbourhood Areas in Bermondsey, and to be

designated as Neighbourhood Forums in respect of those areas. (The prospective

Claimant, OBNF, is in this respect essentially a successor organisation to BVAG). The

boundaries of the two proposed areas for which designation was sought overlapped.

12 The Council decided, on 28th August 2014, to designate a different area to those for which

applications had been made, which the Council called ‘Area A’. This area was much

larger than that which had originally been applied for by BVAG, the predecessor

organisation of OBVNF, extending considerably to the South but being truncated to the

North – that truncation being achieved inter alia through excluding the areas between

Druid Street, Crucifix Lane, Snowsfields and Newcomen Street to the South and Tooley

Street to the North from the Neighbourhood Area for which BVAG had sought

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designation.

13 The reasons for the Council designating ‘Area A’ and, in particular, for excluding the

above areas from the original Neighbourhood Area for which BVAG had applied, were

given in paragraphs 23-26 and 31-34 of the Officer Report, dated 20th August 2014, as

follows:

“The Areas Proposed by BNF and BVAG
23. Bermondsey Neighbourhood Forum proposes the designation of an area
from the River Thames, as far South as the Bricklayers Arms roundabout. This
area incorporates two distinct types of neighbourhood; a predominantly
corporate business area to the North of Snowsfields with taller building heights
and large scale infrastructure, and a lower rise, lower density, predominantly
residential area to the South. The Council does not consider this area in its
entirety to be appropriate for the purposes of neighbourhood planning. The
inherent differences in character, building heights, land use and density of the
Northern and Southern parts of the specified area indicate that the area does not
form a coherent neighbourhood which would be appropriate for neighbourhood
planning.
24. Bermondsey Village Action Group proposes the designation of a smaller
area, including Guy’s Hospital, London Bridge Station including very few
residents. This area comprises mainly strategic sites, the planning and
development of which would have implications well beyond the neighbourhood
area proposed by BVAG. For a neighbourhood forum (potentially comprising as
few as 21 persons) to control the London Bridge and Guy’s Hospital sites, and to
formulate a neighbourhood plan which could potentially have impacts much
further afield than the proposed neighbourhood boundary, is not considered to
be appropriate. The area identified consists of two clearly different built forms of
development, with residential uses located largely in the east, and the strategic
sites mainly in the west. The area does not read as a coherent neighbourhood.
For these reasons, the Council does not consider this area to be appropriate for
the purposes of neighbourhood planning.
25. If the applications for Neighbourhood Area designation are refused because
the specified areas are not considered appropriate, then the local planning
authority must exercise its power of designation so as to secure that some or all
of the specified area forms part of one or more areas designated as a
neighbourhood area. To this end, officers have identified an appropriate area for
designation being Area A, identified edged blue on the map in Appendix C.
Whilst this is different to those areas proposed by BVAG and BNF, it contains
some of the areas identified in the original submissions, as required by section
61G(5) of the Localism Act 2011.
25.

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Proposed boundaries
26. The Council proposes the designation of Area A, identified in Appendix C,
as this constitutes a single coherent neighbourhood which is considered to be
appropriate for neighbourhood planning.
The Northern Boundary
• …
• The boundary follows the Southern side of Snowsfields and Crucifix Lane
incorporating the buildings on the Southern side of the junction between
Crucifix Lane and Bermondsey Street
• The boundary excludes the railway arches along the North of Crucifix Lane
• …
The reasons for the Northern boundary being chosen are:

• Area A is predominantly residential, whilst the area North of the railway is
predominantly commercial, strategic and an employment generator. The built
form reflects this difference in terms of scale, building types and urban layout.
The urban structure in the area North of the railway consists of large plots as
a result of large institutions, commercial developments and major transport
infrastructure including London Bridge stations and viaducts. The scale of
built form is significantly greater around London Bridge in comparison to
Area A and broadly transitions at Snowsfields. London Bridge is a primary
transport interchange with significantly higher levels of pedestrian footfall
and public transport provision than the quieter Area A. The sphere of
influence of this site extends well beyond the area represented by BNF and
BVAG.
• The Business Improvement District covers most of the area North of Area A.
Team London Bridge are an independent, business led project board who
were elected to represent and help support businesses and employees to
improve the area since November 2005. 32,000 people work within the BID
area and 406 business premises are located there. Any Neighbourhood Area
for this section would need to be business led, unlike Area A which is
predominantly residential.
• The railway arches along Druid Street and Crucifix Lane are removed from
Area A in order to ensure that there is a consistent approach to all of the
arches.
• … The area to the North of Snowsfields is different in character to the area to
the South. Snowsfields itself acts as a natural boundary, being one of the main
thoroughfares cutting through the area, therefore, the area to the North of
Snowsfields is not included in Area A. Given the large residential population
in the Southern part of the proposed area between Snowsfields and
Bricklayers Arms, it would not be appropriate to designate this as a business
led neighbourhood plan area. Newcomen Street, Snowsfields and Crucifix
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Lane form a clear boundary between these areas and the almost exclusively
residential area to the South.”

“31. Area A has been proposed by officers because it is considered to form a coherent
neighbourhood in terms of the urban grain and scale, and pattern of land use.
32. The character of the Bankside, Borough, London Bridge and Bermondsey areas
has recently been assessed through the Bankside, Borough and London Bridge
Characterisation Study (June 2013) and Bankside, Borough and London Bridge
Characterisation Study Addendum (Trinity & Tabard) (January 2014)
(appendices E and F). Both studies were prepared for the Council by independent
planning consultants, URS. The areas have a similar character as set out below.
33. The studies have been used to inform the boundaries of the proposed Area A,
which is shown at appendix C of this report. Area A is based on the Bermondsey
area, and the Trinity and Tabard area. Whilst both of these areas are described
separately in the characterisation study and its addendum, similar descriptions
can be applied to both. In relation to Bermondsey, the Characterisation Study
(Appendix E) recognises that “Land use is predominantly residential,
interspersed with commercial and industrial uses.” (p.109, Characterisation
Study, 2013). The Trinity and Tabard character area addendum (Appendix F) is
described as "... predominantly residential, typically laid out as private houses
with gardens or as local authority housing estates set within public green space.
There are small pockets of light industrial uses principally in the east, close to
Long Lane and in the South adjacent to New Kent Road.” (p.7, Characterisation
Addendum, 2014)
34. The built form of Area A is characterised by small areas of private housing amid
larger residential housing estates. Overall, building heights are much lower than
the neighbouring areas of Tooley Street, London Bridge and Guy’s Hospital to
the North. The scale of development within Area A is moderately consistent at
around 11-20m in height, as illustrated in the Figure 101 of the Characterisation
Study and Figure 7 of the Characterisation Addendum. Therefore, Area A is
considered to form a coherent neighbourhood which is appropriate for
neighbourhood planning.”

14 The reference to “strategic sites” in paragraph 24 of the August 2014 Report, apart from

Guy’s Hospital, is to two sites in St Thomas St that have become the subject of “London

Bridge Site Allocations” in the emerging “New Southwark Plan”, including:

(1) NSP52: Land between Melior Street, St Thomas Street, Weston Street and

Fenning Street. This site comprises “the Becket House Site” and “the Capital

House site”:

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i. The Becket House site is currently occupied as offices by the Border

Agency. Emerging Policy NSP52 proposes that redevelopment of

the site should provide at least the amount of employment

floorspace currently on the site, or provide at least 50% of the

development as employment floorspace, whichever is greater, and

new homes; and

ii. The Capital House site is a 10-storey commercial building bought

for £6m in 2006 by a Jersey registered company. Planning

permission was granted in 2010 for a 31-storey tower of student

accommodation called “The Quill”, which permission was

subsequently altered to residential, before the site was sold on last

year for £54m to Jersey domiciled nominee owners for South

Carolina investors, Greystar, who are lookinghave submitted an

application to return to student accommodation, but on a larger

scale with 45-storeys.

(2) NSP53: Land between St Thomas Street, Fenning Street, Melior Place, and

Snowsfields. This site comprises “the St Thomas Street car park site together

with “the vinegar warehouse”, “the Horsehoe Pub”, and partly Victorian

warehouse buildings. As with emerging Policy NSP52, emerging Policy

NSP53 proposes that redevelopment of the site should provide at least the

amount of employment floorspace currently on the site, which is negligible,

or provide at least 50% of the development as employment floorspace,

whichever is greater, and new homes.

15 On 5th August 2015, OBNF (the successor organisation to BVAG), were designated as a

Neighbourhood Forum for the Neighbourhood Area, ‘Area A’. However, they never

accepted that the Council had correctly identified ‘Area A’ as the appropriate area for

that Neighbourhood Forum. In particular, OBNF was, and remains, strongly of the view

that the assertion, in paragraph 23 of the August 2014 Report, that the area North of

Snowsfields is (aside from a London Bridge Station and Guy’s Hospital) a distinct

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business area of higher buildings large scale infrastructure and higher density was

wrong, and hides the true motive of the Council, which is simply to frustrate

neighbourhood planning in Bermondsey by preventing OBNF from exerting any

influence over the above strategic sites. In particular:

(1) The North side of Snowsfields is of almost identical character to Bermondsey

Street - Victorian and later shops at ground floor and residential above.

Weston Street, North of Snowsfields, is also very similar in identity to

Bermondsey Street and comprises small business premises and shop fronts

with residential above.

(2) Aside from the station and Guys and St Thomas, there is nothing ‘corporate’

North of Snowsfields and South of the Railway line – save the two medium

sized office buildings, Beckett House and Capital House (let to King’s

College), and the Council has already consented (Nov 2015) to the almost

complete conversion (except ground floor retail) of the Capital House site to

residential use (120 flats); and redevelopment of Beckett House is also

required, according to NSP52, to provide ‘new homes’.

(3) There is nothing corporate on the NSP53 site either - it was last used as a car

park (mostly), includes the Horseshoe Pub and the derelict Vinegar

Warehouse – last operating as a small leather wholesaler, and is also

earmarked to provide 50% residential in the site allocation.

16 Moreover, there is firm support for the OBNF view with regard to the true character of

the area in the Council’s own documents. In particular:

(1) Whilst, in paragraph 26 of the August 2014 Report, it is asserted that

Snowsfields is the “natural” Northern boundary to the Neighbourhood Area,

relying inter alia on the Bankside, Borough and London Bridge

Characterisation Study in this regard, as a matter of incontrovertible fact, all

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of the maps in the section of the Characterisation Study on Bermondsey (from

page 104) describing the character of the area (in terms of urban structure,

built form and heritage etc.) include the area North of Snowsfields up to

Melior St and Vinegar Yard in the same area as that to the South; and,

moreover

(2) Both the area to the North and South of Snowsfields fall within the same

Bermondsey Street Conservation Area.

There is, therefore, a clear discrepancy between the Characterisation Studies, and the

Conservation Area designation, and the August 2015 Report in this regard.

17 Hence, and on 13th September 2017, OBVNF applied to the Council for an extension to

its designated Neighbourhood Area to include inter alia the area North of Southfields

(but in deference to the reference to ‘large scale infrastructure’ in the August 2014 Report

– which can only be a reference to Guys and St Thomas Hospitals and London Bridge

Station – excluding the same from the extended area applied for). The extension for

which application was made included, in particular, the areas between Druid Street,

Crucifix Lane, Snowsfields and Newcomen Street to the South and Tooley Street to the

North.

18 The Statement accompanying the OBNF application [Tab12 P.128] stated as follows:

“OB(N)F was recognised by the Council in August 2015. The area had been
created in a separate initiative of its own by the Council in October 2014. This
area, designated by the Council as ‘Area A’, is much larger than the group had
originally applied for, extending considerably further to the South, but it was
truncated to the North.
The Forum has since held numerous meetings and established various working
groups that have draft policies for inclusion in the Neighbourhood Plan. In the
process of evolving policies it has become clear that the area designated by the
Council does not optimise the planning process the Forum is engaged in and its
boundaries do not reflect an area with coherence for neighbourhood planning
purposes.
The reason is that the areas between Druid Street, Crucifix Lane, Snowsfields and
Newcomen Street to the South and Tooley Street to the North, that were included
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in the original application, fit better in character, urban grain and scale with the
Northern part of the area designated by the Council; they mainly consist of small
independent businesses and residences with a high concentration of buildings of
some historic or architectural interest.
The area to the South of the designated ‘Area A’ is comprised almost exclusively
of estates. These give rise to important planning policy issues with which the
Forum is keen to engage. However, despite holding meetings in the immediate
areas of the estates in the Southern part of our designated area it is proving
difficult to get the level of engagement that we would wish for in order to give
representative authority to neighbourhood plans relating specifically to this
area.
Planning policy initiatives and formulation are therefore lagging in respect of the
Southern part of our area and are falling behind those focusing on the Northern
part - as originally applied for. Consequently the South threatens to hold up
progress on the Neighbourhood Plan as a whole and it will be necessary for the
Forum to consider a two-track progression of the plan in order to avoid delay to
plans for the Northern part.
Hence we want to create the more consistent and well-represented area shown
in our new extended area application. At the same time the Forum will consider
a division of its existing area into two more naturally coherent parts (North and
South) to assist, at least in its own administrative approach to policy initiatives
for each area.
By this means we expect to be able to achieve better representation generally
and a more efficient gestation process for the Neighbourhood Plan.”

19 It is in the above circumstances that, on 28th November 2017, the Council agreed to

consult on the OBNF application to extend its Neighbourhood Area. The consultation

closed on 1st February 2018 and the consultation replies [Tab16 P.163-191] were put on the

Council’s website on 8th February 2018. The overwhelming majority of consultation

responses agreed with the proposed extension, including many which expressly agreed

with the above points on the coherent character of the proposed, extended,

Neighbourhood Area:

“I think it makes a lot of sense. I've lived in the local area since 2001, initially on
Whites Grounds Estate, and now in Royal Oak Yard. The boundaries proposed
by the expanded area to the North match the 'natural' boundaries in terms of feel
of the area. Tooley Street is a clear boundary, but the area South of there, albeit
North of the train tracks, has a very similar feel to the area of Bermondsey Street.”

“I am fully supportive of the extended area. It seems extremely odd that specific
areas around Guys Hospital, St Thomas Street and Snowsfields were originally
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excluded. These adjoining streets to the Bermondsey Street area are crucial to the
fabric and make-up of the area and local community.”

“I fully support the application to extend the Neighbourhood Area to the area as
designated by the extension, especially with regards to Melior St and its
surrounding areas. The numerous small businesses, not to mention the Church
based in the area, are intrinsic parts of a 'local neighbourhood' and contribute to
the neighbourhood feel. They deserve the ability to have representation as part
of a Neighbourhood Forum, and as off-shoots from Bermondsey Streets, it would
be ridiculous to exclude.”

“I fully support the extension proposed by OBF. I have worked in the area for
around 3 years, and I think the character and atmosphere of Bermondsey village
is so unique and perfectly suited to benefit from Neighbourhood Planning.”

“Yes. The area designated by the Council does not optimise the planning process
in which the Forum is engaged and its boundaries do not reflect an area in line
with neighbourhood planning purposes. This is because the areas between
Druid Street, Crucifix Lane, Snowsfields and Newcomen Street to the South and
Tooley Street to the North, which were included in the original application, fit
better in character, urban grain and scale with the Northern part of the area
designated by the Council, as they mainly consist of small independent
businesses and residences with several buildings having some historic or
architectural interest. It would be to the detriment of the local community if the
area the Forum is seeking to reinstate is excluded by the Council.”

“I think the proposal is valid on the basis that the land on the other side of
Snowsfields and the railway is very similar in character to the existing area in
age, style and type of use (for example the council block the other side of
Snowsfields is exactly the same style as Tyers Gate). It is however clearly
different to More London/Guys/LB station which make the new boundaries very
logical.”

“It makes unquestionable sense for the area named "Area A" (and coloured
yellow in the questionnaire) to be extended to include the area named "Proposed
Extension" (and shaded blue in the questionnaire). Given the similarity in
architecture (e.g. Vinegar Yard warehouse and the warehouses on Bermondsey
Street), the shared character (e.g. alleyways and low-rise buildings both North
and South of the railway lines) and the close proximity it is logical and coherent
for "Area A" to include the "Proposed Extension" area. I fully support OBF's
proposal to extend the area of coverage for the Revised Neighbourhood Area.”

“The revised area has a much more sensible boundary as it includes buildings
that are common with the village feel of Bermondsey Street. The extended area
also includes the vinegar yard warehouse which is one of the most prominent
buildings in the area. Vinegar yard represents the historic industrial nature of the
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area, it is this very aspect that makes London Bridge such a desirable
neighbourhood. It would be a crying shame for the community to lose this
building. If people wanted glass and stainless steel high rise they would go to
Canary Wharf. The people of Bermondsey Village/London Bridge appreciate the
medieval infrastructure and the industrial Victorian heritage. I know this as I
have lived on Bermondsey Street for 20 years.”

“Having just Southwark Council's notional "Area A" set as the scope of the
Neighbourhood Forum area appears to me to be missing what it is that makes
up the Character of the area. The inclusion of the extra Northern section, as
suggested by OBF, is much more in keeping with the tone and fabric of the area
as a whole.”

“I am in support of the proposed extension of the Old Bermondsey Forum
Neighbourhood Area. I think it is a very good idea to extend this area to the
North, as proposed in blue. Doing so will help create a very much more coherent
area in neighbourhood planning terms and will be a considerable advancement
and benefit to the local residents and businesses in the Neighbourhood Area as a
whole. Also, the additional area in the proposed extension is similar in nature,
character, urban grain and scale to the built environment in the already
designated Area 'A' and will be further enhanced by this proposed extension.”

“The additional areas now being applied for show a number of similarities with
the Northern parts of the (already designated) "Area A" in terms of business and
residence type, and many of the buildings manifest a degree of heritage and/or
architectural interest. The revised Neighbourhood Area should prove more
cohesive as well as giving a better opportunity for local people to have a voice in
the planning process.”

“I support wholeheartedly the OBF’s proposed extension as outlined in
Appendix 3 of the Application submitted for the revised Neighbourhood Area by
the Old Bermondsey Village Neighbourhood Forum to the council during
September 2017 for the following reasons: (1) The extended area to the North has
much in common with the existing area of the Neighbourhood Plan, being a mix
of residential dwellings, independent shops and small businesses. …”

20 All of the above consultation replies are clearly highly material to the proper

identification of the Neighbourhood Area and fully support the OBNF application for

an extension upon bases which are consistent with the legislative and policy framework

described above. Moreover, they are the authentic voice of the local community,

precisely the voices to which great weight should be given in Neighbourhood Planning.

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21 It is in this regard also to be noted that Team London Bridge (“TLB”), expressly stated as

follows in their own consultation response, plainly agreeing with OBNF with regard to

character:

"We recognise and respect the view of Old Bermondsey Village Neighbourhood
Forum that the streets included in the additional area proposed fit better in
character, urban grain and scale with the Northern part of the area designated by
the Council; they mainly consist of small independent businesses and residences
with a high concentration of buildings of some historic or architectural interest.”

22 There were some, but not many, objecting voices – in particular, from the following

institutions, developers and landowners:

(1) The Guy’s and St Thomas’ NHS Foundation Trust;

(2) The Guy’s and St Thomas’ Charity;

(3) Kings College London;

(4) Greystar Holdings Ltd. (a global real estate company and developer);

(5) Sellar property Group (developer of the Shard); and

(6) Zurich Assurance Ltd. (who are promoting redevelopment of Becket House).

23 In addition, TLB also stated as follows (albeit against the backcloth of accepting that the

proposed extension to the Neighbourhood Area was a better fit in terms of “character,

urban grain and scale” with the Northern part of the area designated by the Council):

“Our primary concern is the potential impact of the proposed Neighbourhood
Area on the development and delivery of the London Bridge Plan. The London
Bridge Plan sets out our strategic vision in partnership with Southwark Council
for the London Bridge area. Its aims and projects have developed out of local
public consultation with over 300 businesses and 400 individual comments, as
well as taking into account existing and emerging local and strategic planning
and economic strategies. The Plan was developed following a second BID
extension to 2021 which was won in 2015. It is robust and well supported by the
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local community.”

24 This comment is reflective of the reference in paragraph 24 of the August 2014 Report to

the excluded area comprising “mainly strategic sites”, sites NSP52 and NSP53.

However, as made clear in paragraphs 7-10 above:

(1) Paragraph: 036 Reference ID: 41-036-20140306 of the PPG expressly states

that a Neighbourhood Area can include sites viewed as strategic by the Local

Planning Authority;

(2) Any Neighbourhood Development Plan and/or Order will have to accord

with the strategic vision of the Local Planning Authority in any event;

(3) Since Neighbourhood Planning is intended to enable Neighbourhood

Forums to exercise influence over decisions that may make “a big difference

to the lives of local residents”, it is particularly apt that such sites be

included in Neighbourhood Areas; and

(4) It would, in any event, be quite wrong for the Local Planning Authority to

pre-judge or make assumptions about what will emerge from developing,

testing and consulting on any draft Neighbourhood Plan or Order when

designating a Neighbourhood Area – see: Paragraph: 035 Reference ID: 41-

035-20161116 of the PPG above.

25 Further, and so far as the objections related to Guy’s and St Thomas are concerned

(which includes those raised by Kings College London), these relate principally to

proposed Policy NSP51 of the emerging Replacement Southwark Local Plan. However,

the sites of Guys and St Thomas were deliberately excluded from the proposed,

extended, Neighbourhood Area.

26 That leaves the objections of the landowners and developers, whose principal concerns

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were that:

(1) The extended Neighbourhood Area contains strategic development sites,

including those related to emerging Policies NSP52 and NSP53; and

(2) Nothing has changed since August 2014 to justify a different conclusion of the

character of the area since then.

27 However, so far as (1) is concerned, the same points made in paragraphs 7-10 and 24

above apply; and, so far as (2) is concerned, the same points made in paragraphs 12-16

apply. The August 2014 conclusion in terms of the character of the area was simply

wrong – it was unsupported by, and inconsistent with, the documentation that the

Council purported to rely upon.

28 On 13th February 2018, under cover of an email sent by Russell Gray to Mr Simon Bevan

of the Council, OBNF submitted a legal Opinion [Tab17 P.192-202] on the application to

extend the Neighbourhood Area in the light of the matters set out above and making

reference to area character, and the consultation responses. That legal Opinion made all

of the above points and concluded as follows:

“For all of the above reasons, the case for approving the application to extend the
Neighbourhood Area is compelling. There is overwhelming local support for it;
the best available evidence on character and appearance and community ties
support it; there is good reason in these regards (and new evidence) for the
Council to come to a different conclusion than in August 2014, which is
inconsistent with the Bankside, Borough and London Bridge Characterisation
Study; and the concerns raised by the principal objectors – who are not the voice
of the local community - are unfounded.
In the premises, should the Council decide to refuse the OBNF application for
the extension of the Neighbourhood Area, at the very least to Crucifix Lane, they
will plainly be at risk of being successfully challenged by an application for
judicial review through failing properly to interpret and apply relevant policy
and through failing, accordingly, to take into account all but only material
considerations in accordance with the policy of the Localism Act.”

29 By an Officer Report to the Council Cabinet Member for Regeneration and New Homes,

16
dated 20th February 2017 [Tab18 P.203-212], however, it was recommended that the

application to extend the Neighbourhood Area be refused. The stated reasons for this

recommendation were, inter alia, as follows:

“21. Comments were received from Team London Bridge. Their view was that
Area A remained the appropriate area for neighbourhood planning with a focus
on establishing an appropriate plan to cover that area and drive forward pro-
active planning strategies.

29. It is not considered that the area proposed by the applicant is appropriate for
neighbourhood planning, for the reasons those areas were excluded in 2014. The
character of the respective areas has not changed materially since then and the
reasons for excluding those areas remain.
30. One planning change that has taken place since the designation of Area A
in 2014 is that part of the land outside of that area (and subject to the present
application) has been included in the proposed submission draft of the New
Southwark Plan as site allocations. The council has identified these sites, known
as NSP52 and NSP53, as necessary to meet the strategic aims of the council’s
planning and regeneration strategy and vision for London Bridge. NSP 52 is the
land between Melior Street, St Thomas Street, Weston Street and Fenning Street.
The proposed uses are for a re-provision of at least the amount of employment
floorspace (B class) or 50% of the development as employment floorspace,
whichever is greater. Furthermore their proposal is to include a requirement in
the policy that the site should enhance St Thomas Street by providing high
quality public realm and active frontages including town centre uses (A1, A2, A3,
A4, D1, D2 at ground floor). Redevelopment of the site should also provide new
homes (C3). The site area is 3,814m2 and the existing uses are as university
building (D1) 5261m, Car parking and Office (B1) 3652m2. NSP 53 is the land
between St Thomas Street, Fenning Street, Melior Place and Snowsfields.
Redevelopment of the site must re-provide at least the amount of employment
floorspace (B class) as currently on the site or provide at least 50% of the
development as employment floorspace, whichever is greater. It should also
provide a new north-south green link from Melior Place to St Thomas Street,
enhance St Thomas Street by providing high quality public realm and including
town centre uses (A1, A2, A3, A4, D1, D2) at ground floor. The site should
provide new open space of at least 15% of the site area. Development of the site
should provide new homes (C3). The site area is 4033m2 and the existing uses
are office temporary (B1)2691m2, light industrial and ancillary office and storage
(B1) 751m2 and warehouse vacant 1117m2.”

30 So far as the conclusion reached in paragraph 29 is concerned:

17
(1) The February 2018 Report essentially repeated, in paragraphs 26-28,

paragraphs 23-25 of the August 2014 Report; and, in paragraphs 32-35,

paragraphs 31-4 of the August 2014 Report;

(2) Once again reliance was placed on the Bankside, Borough and London Bridge

Characterisation Study, even though all of the maps in the section of the

Characterisation Study on Bermondsey (from page 104) describing the

character of the area (in terms of urban structure, built form and heritage etc.)

include the area North of Snowsfields up to Melior St and Vinegar Yard in

the same area as that to the South;

(3) No mention was made of the fact that the areas to the North and South of

Snowsfields fall within the same Bermondsey Street Conservation Area; and

(4) Whilst reference was made to the TLB consultation response in paragraph 21,

indicating that they supported the continuance of Area ‘A’ as the

Neighbourhood Area “to drive forward pro-active planning strategies”,

nowhere was it stated in the Report that TLB considered that that the

proposed extension to the Neighbourhood Area was a better fit in terms of

“character, urban grain and scale” with the Northern part of the area

designated by the Council.

31 So far as the points made in paragraph 30 are concerned:

(1) No mention was made of Paragraph: 036 Reference ID: 41-036-20140306 of

the PPG, which expressly states that a Neighbourhood Area can include sites

viewed as “strategic” by the Local Planning Authority;

(2) No mention was made of the legal requirement that any Neighbourhood

Development Plan and/or Order will have to accord with the strategic vision

18
of the Local Planning Authority in any event;

(3) No mention was made of the Government intention to enable

Neighbourhood Forums to exercise influence over decisions that may make

“a big difference to the lives of local residents”, such that it was particularly

apt that such sites be included in Neighbourhood Areas; and

(4) No mention was made of Paragraph: 035 Reference ID: 41-035-20161116 of

the PPG, whereby the decision-maker was not, in any event, entitled to pre-

judge or make assumptions about what will emerge from developing, testing

and consulting on any draft Neighbourhood Plan or Order when designating

a Neighbourhood Area.

32 On 23rd February 2018, OBNF, under cover of an email sent by Russell Gray to Mr Mark

Williams of the Council, submitted a response to the report, dated 20th February 2018, ,

recommending refusal of the revised Neighbourhood Area application [Tab19 P.213-

237]. The response had attached to it the above legal Opinion (Appendix 1) and

photographs demonstrating the shared character of the area (Appendix 2). It stated inter

alia as follows:

“Our view - well supported by authentic local opinion as evidenced in the
consultation responses - remains that the proposed areas of extension to Area A
make a for coherent and much more complete neighbourhood area coverage
because they fit better in character, urban grain and scale with the northern part
of the area designated by the Council; they mainly consist of small independent
businesses and residences with a high concentration of buildings of some
historic or architectural interest.”

In relation to the common character of the area it went on to say:

“Furthermore it is easy to make multiple specific comparative ties in terms of
“character, building heights, land use and density” between key elements of the
proposed extended areas and key areas of the Forum’s current area. Examples of
these comparative character ties can be seen clearly in Appendix 2 to this letter
with photographic illustration.”

And in relation to Team London Bridge:
19
“As per our application (and as acknowledged by TLB in 2014 and presently) the
Forum and TLB have shared visions (comments on NSP52 and 53 for example)
and attend each other’s meetings etc. However, TLB is a BID. Their membership
is restricted and residents do not have a voice. Their internal meetings are not
open or publicised to the wider community. Hence, like any other organisation
or business in the extended area they are as important a part of the Forum and
the neighbourhood plan as they actively choose to be. The eligibility of OBF to
extend to an area to which its existing area is naturally connected, with a largely
common character and identity (as indeed recognised by TLB in their response
to the current 2018 application) does not depend on the response to the proposal
of any specific, restricted interest group.”

33 On 26th February 2018, the Cabinet Member for Regeneration and New Homes refused

the application for an extension to the Neighbourhood Area. That decision [Tab20

P.238-247] was then published by the Council on 27th February 2018, so as to come into

force on 7th March 2018 unless “called in” under the Council’s constitution.

34 The notice of decision included the additional comment below, confirming some of

OBNF’s points about the character of the area, properly assessed:

“2. In addition, in order to address concerns raised, an editorial amendment to
the New Southwark Plan proposed submission version will be made before
submission to the Secretary of State to the Design and Accessibility Guidance
NSP53 as follows:
“The site is within the setting of the Grade II listed Railway Arches. The site is
partially within the Bermondsey Street conservation area and includes an
important unlisted building, The Leather Warehouse, which makes a positive
contribution to the area. The site is also within the setting of these buildings.
Development proposals should seek to retain and enhance where possible the
townscape setting provided by key heritage assets including the unlisted leather
warehouse on Snowfields Street, the Horseshoe Inn located on Vinegar Yard and
the Grade II listed Railway Arches. Development proposals should complement
local character and distinctiveness. The urban grain and street layout of the
surrounding area should be retained.”

35 A call-in request was made by local Councillors but was rejected on 8th March 2018. A

pre-action protocol letter [Tab3 P.1-23] was drafted and sent within 19 days of that

decision. No reply was received from the Council by the date specified in that letter, but

a reply was received on Friday 6th March 2018 [Tab3 P.23a-23c], asserting that, contrary

20
to the concerns expressed in the pre-action protocol letter:

(1) The Council did take into account the fact that the Bankside, Borough and

London Bridge Characterisation Study included the area North of

Snowsfields in the same Area as that to the South when deciding not to

include both areas in the same Neighbourhood Area, and that the February

2018 Report made explicit reference to that Study;

(2) The Council also took into account the fact that the areas to the North and

South of Snowsfields fell within the same Bermondsey St. Conservation Area

when deciding not to include both areas in the same Neighbourhood Area;

and

(3) The Council also took into account the TLB consultation response (including

one infers, “that the streets included in the additional area proposed fit better

in character, urban grain and scale with the Northern part of the area

designated by the Council; they mainly consist of small independent

businesses and residences with a high concentration of buildings of some

historic or architectural interest”) when deciding not to not to include both

areas in the same Neighbourhood Area.

36 However, so far as (1) above is concerned, whilst the Characterisation Study is referred

to in the February 2018 Report (indeed, it is relied upon), nowhere in that Report was

there any reference to the critically important fact that the Study actually included the

areas North and South of Snowfields in the same Area and, accordingly, did not support

‘Area A’ in terms of the character of the area as suggested by the February 20108 Report

– quite to the contrary.

37 Further, and so far as (2) above is concerned, whilst the Council assert that they took into

account the fact that the areas to the North and South of Snowsfields fell within the same

Bermondsey Conservation Area, nowhere is that even mentioned in the February 2018

21
Report, still less that this fact plainly did not support ‘Area A’ in terms of the character

of the area as suggested by the February 20108 Report.

38 Yet further, and so far as (3) above is concerned, whilst the TLB consultation

response is referred to in the February 2018 Report, it is referred to in a wholly partial

way, nowhere acknowledging that TLB’s view on the character of the area wholly

supported OBVNF’s application for an extension to its Neighbourhood Area and

contradicted the views on character expressed in the February 2018 Report.

39 By the same reply to the pre-action protocol letter, dated Friday 6th March 2018, the

Council also asserted as follows, contrary to other concerns expressed in that pre-action

protocol letter:

(1) The Council did have regard to guidance in paragraph 036 of the Planning

Practice Guidance that strategic sites can be included in Neighbourhood Areas,

but did not refuse to designate the proposed Neighbourhood Area on the basis

that it would be impermissible to include a strategic site;

(2) In reaching its decision the Council did not pre-judge or make any assumptions

about what would emerge from developing, testing and consulting on any draft

Neighbourhood Plan; and

(3) The Council refused to designate the proposed Neighbourhood Area for the

reasons set out in the February 2018 Report.

40 However, so far as (1) above is concerned, paragraph 30 of the February 2018 Report

explained in considerable detail that the “one planning change that has taken place since

the designation of Area A in 2014 is that part of the land outside of that area (and subject

to the present application) has been included in the proposed submission draft of the

New Southwark Plan as site allocations… known as NSP52 and NSP53, as necessary to

22
meet the strategic aims of the Council’s planning and regeneration strategy and vision

for London Bridge.”

41 The inference is plainly that this was considered material to the decision to be taken, in

which case - and in order to present a balanced and unbiased Report - the express

Government Guidance that a Neighbourhood Area can include strategic sites should

also have been referred to - nowhere was it mentioned. Further, and for the same reason,

the fact that any Neighbourhood Plan would have to accord with the strategic vision of

the Local Planning Authority in any event should also have been referred to - nowhere

was it mentioned. And, for the same reason, the fact that the Government intention was

to enable Neighbourhood Forums to exercise influence over decisions that may make “a

big difference to the lives of local residents” should also have been referred to – again,

nowhere was it mentioned.

42 In the alternative, and if the Council’s position is that the fact that the proposed extension

included strategic sites was wholly irrelevant to the decision which was taken, paragraph 30

should not have been included in the February 2018 Report at all, as it was an entirely

immaterial consideration to the decision which was to be taken.

43 Further, and so far as (2) above is concerned, to the extent that the inference of paragraph 30

of the February 2018 Report is that the Council were intent on preventing OBVNF from

having influence over the strategic sites, that Report not only failed to mention the matters

set out in paragraph 41 above, but also failed to mention that the decision-taker should

not presume how that influence might be exercised (Paragraph: 035 Reference ID: 41-

035-20161116 of the PPG).

44 Finally, and so far as (3) above is concerned, and the reasons given in the February 2018

Report:

(1) So far as “character” is concerned, they are inadequate, improper and

unintelligible for all of the reasons given in paragraphs 12-16, 19, 21, 27, 32, 34

23
and 36-38 above; and

(2) So far as “strategic sites” are concerned, they are inadequate, improper and

unintelligible for all of the reasons given in paragraphs 7-10, 24, 27, 31 and 40-43

above.

(3) In particular, they do not grapple at all with any of the principal controversial

issues raised by the above paragraphs and “plainly give rise to a substantial

doubt as to whether the decision-maker erred in law, for example by

misunderstanding some relevant policy or some other important matter or by

failing to reach a rational decision on relevant grounds” – see: South Bucks DC

v. Porter (No. 2) [2004] UKHL 33.

Formatted: Indent: Hanging: 0.25"

THE GROUNDS OF CHALLENGE

3545 The Claimant seeks permission to pursue judicial review of the decision under

challenge on the following two four grounds:

Ground One: Failing to take into account matters relevant to the proper

determination of the boundaries of the Neighbourhood Area by reference to

character:

(1) The fact that the Bankside, Borough and London Bridge Characterisation

Study included the area North of Snowsfields in the same area as that to the

South;

(2) The fact that the areas to the North and South of Snowsfields fall within the

same Bermondsey Street Conservation Area; and

(3) The fact that the Team London Bridge consultation response, together with

almost all other responses, considered that that the proposed extension to the

24
Neighbourhood Area was a better fit in terms of “character, urban grain and

scale” with the Northern part of the area designated by the Council.

Ground Two: Failing to take into account matters relevant to the proper

determination of the boundaries of the Neighbourhood Area by reference to

strategic sites:

(1) The specific guidance in Paragraph: 036 Reference ID: 41-036-20140306 of the

PPG that strategic sites can be included in a Neighbourhood Area, inserted

into the PPG on 6th March 2014;

(2) The Government intention that Neighbourhood Forums exercise influence

over decisions that may make “a big difference to the lives of local residents”,

such that it was particularly apt that such sites be included in Neighbourhood

Areas; and

(3) The specific guidance in Paragraph: 035 Reference ID: 41-035-20161116 of the

PPG that the decision-maker should not pre-judge or make assumptions

about what will emerge from developing, testing and consulting on any draft

Neighbourhood Plan or Order when designating a Neighbourhood Area.

Ground Three (in the alternative to Ground Two): taking into account an

immaterial consideration – viz. that the proposed extension to the

Neighbourhood Area included strategic sites.

Ground Four: Failing to give adequate, proper and intelligible reasons by

reference to either character or strategic sites, and giving instead reasons which

give rise to a substantial doubt as to whether the Council erred in law by

misunderstanding policy or some other important matter or by failing to reach

a rational decision on relevant grounds.

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CONCLUSIONS

3646 For the above reasons:

(1) This challenge should be upheld on both all four Grounds;

(2) The decision to refuse OBVNF’s application to extend its Neighbourhood Area

should be quashed; and

(3) The Council should pay the Claimant’s costs.

***

AARHUS CONVENTION

The challenge is an Aarhus Convention claim as it relates to the correct Neighbourhood Area

to designate for the purposes of Neighbourhood Planning and has significant implications for

the environment.

Paul Stinchcombe QC 6 April 2018
39 Essex Chambers
81 Chancery Lane
London WC2A 1DD

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