Westminster Council has recently placed much emphasis on increased community involvement in the planning process, and indeed, several improvements have been introduced, such as the right to be heard at Planning Committee meetings. The document, “A New Dawn for Planning” (agreed by Cabinet on 25 October 2018) further gave an undertaking that planning decisions will be more closely related to residents’ views.
A good test of this aspiration then was how it would measure up against one of Marylebone's most heavily contested issues in recent years, the future of the Luxborough Towers Play Space. WCC themselves conceded that this had sometime ago become a space open to the community and it was listed as a Protected Open Space in the Westminster City Plan therefore any application was to be considered against the relevant policies relating to loss of community space and open space.
This site had been for years a valuable and much needed kick about space for young people in the local area before it was boarded up in 2015 and designated for the new Marylebone Library (still unresolved 12 years from its closure and various relocations to ever smaller temporary spaces). This plan was abandoned in 2016, apparently due to difficulties in procurement of a contractor. But it remained boarded up and its future use remained a matter of great local interest and concern. A concern that was not alleviated by the commencement of site clearing works and groundworks last December - and the removal of wrought iron railings without any consents being in place.
Considering the background to this, Westminster Council should have been exceptionally careful to be seen to be as objective as possible in deciding whether to award itself planning permission for the development of this site. It needed to act, not as a developer would, but rather as an arbiter of community opinion, in order to overcome the hurdle of conflict of interest that this posed.
However the Council’s Planning Committee decision to approve its own application for a 14 flat affordable housing residential development with some form of community use at ground level has not looked at all objective, it has in fact caused a great deal of local anger and bemusement.
It was widely felt that the consultation process was flawed. Its conclusions were based on very few responses from poorly attended meetings; the questions posed were loaded in favour of the application and it ignored the much greater weight of evidence of public anxiety about the scheme. The figures gleaned were then professionally presented with a variety of charts by way of percentages to give the appearance of community approval for a project that, in reality, had almost none.
Further, there was substantial stakeholder resistance to the scheme; 839 people signed a petition against it; it was in breach of a large number of its own open space policies; it was in breach of various policies in the London Plan and also National Policy on open spaces. Also the Diocese of London complained about WCC’s failure to consult in spite of them raising substantial legal objections based on their ownership of the surrounding land. Finally the development would need the removal of a large protected London Plane tree.
It is therefore of interest to see how Westminster in the face of all this managed to reach the decision they did.
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In order to satisfy its own guidelines and national ones, WCC needed to show that there had been a model of community engagement as required by the National Planning Policy Framework (Paragraph 39) with “early …and comprehensive engagement, much pre-application discussion”. And indeed WCC, or at least their agents, were involved in a great number of meetings, including; those with ward councillors, the Marylebone Association, the Marylebone Forum, Marylebone Mums and Dads, the St Marylebone Society, the Church Rector, several public consultations and engagements. Plenty of discussion and engagement therefore - but was any of it actually listened to?
While there was some support for the scheme, and general support for more affordable housing in the right context, a considerable number of objections were received, including the 800 plus signatory petition. Other objections, of which there were very many, related to the impact of the development upon the amenity of neighbouring residential properties; the height, bulk and design of the new building and its impact on the streetscape; the impact of building works. Did all this not have considerable weight?
It would appear not, but what was given considerable weight were the 2 public engagement sessions that were held by WCC agents, Peter Brett Associates, who were instructed by Westminster City Council to prepare their Statement of Community Involvement in support of the application.
The first round of public events took place in October 2018 and a summary of their analysis showed that respondents who attended the public events were mainly in favour of a wholly residential development. But this was based on forms filled out by just 13 of the 28 people who attended, and only 79% of them were for the scheme, i.e. around 10 people. The online responses received were predominantly in favour of returning the Application Site to its former use as a kickabout space and objected to a fully residential scheme.
The second round of public engagement events took place in June 2019. The events were attended by 27 individuals. Of those that responded, 64% supported the revised proposals with 36% objecting to the proposals. Of those that were sent by email only, 14% supported the proposals, with 72% against them.
However, out of the 27 individuals who attended, only 11 feedback forms were received (and 11, mainly against, emails at a later date). This meant that the figure produced supporting the Council proposals, which was later relied on so heavily to push the scheme through was based on 8 positive responses on this event and 10 on the first- a total of 18, and a number of those would have been the same individuals attending both engagement events.
Could this be in any way regarded as adequate? Yes, according to Peter Brett Associates - “In conclusion, the approach to pre-application engagement by the Applicant accords with relevant NPPF policies and local planning policies on engagements.”
This, then, was a very small cohort in favour- approximately 18, in the face of all those who had petitioned against the scheme, further online submissions and emails against, and the many stakeholder responses, either against, or with strong reservations about various aspects of the development.
The case clearly demonstrates the dangers - and the limitations of community engagements, which can be, and frequently are, used to obtain the desired outcome rather than seeking to obtain the actual views of the community engaged with, and act on them. They appear to be there to satisfy a necessary part of the process, rather than to offer real and meaningful dialogue with the community.
However, this is only half the story. Not only was this decision made contrary to the wishes of the overwhelming majority of locals, but also in the face of at least 7 of WCC’s own policies that specifically protect open spaces. Such as Policy S34 of the City Plan “… to protect all social and community floorspace (including external space), except where existing provision is being reconfigured.”…Or again, City Plan Policy S35, “the Council will seek to address existing public open space deficiencies, including active play space deficiency, and current and future open space needs by protecting all open spaces and their quality, heritage and ecological value, tranquillity and amenity”.
It was also directly contrary to at least 4 of the London Plan Policies seeking to protect open space - and National Policy which clearly states, “that existing open space/land used for sport should not be built on- unless an equivalent is found elsewhere...”(NPPF para. 97).
Nonetheless, having duly considered all of the above, the WCC Director of Development’s report to Cabinet acknowledged that, while the proposal would be strictly contrary to City Plan Policy S35, this needed to be weighed up against the potential benefits of an alternative use of the site and “...on balance, .....the potential benefits of the scheme, notably the delivery of new homes including affordable homes, may substantially outweigh the policy conflict with regards to protecting open space”.
But does it? In what is already a densely occupied residential area, what we do already have is a significant amount of new homes, including affordable, in the immediate area. Close by the Play Area are 60 new flats on the site of the former Chiltern Street car park, 55 new flats in former International House, on the south side of Paddington Street, and presently being built are 79 flats (28 family-sized units) on the Moxon Street car park site. Whilst what we do not have is the open space to go with these homes and especially play space for ball games for older children and adults - and at a time when good physical health is of critical importance to us all.
The objections however did not end there. WCC faced a substantial legal challenge to the viability of carrying out any works from the Rector of St Marylebone Parish Church. He advised that the works in Paddington Street Gardens would require the approval of the Diocese of London. The Diocese considered that issues remain “unresolved” with respect to physical boundaries and that any works should be agreed between the parties.
The Church claimed that Westminster City Council has a legal duty, whatever its decision, to seek permission under ecclesiastical law. The law requires this because the works border and encroach into consecrated land. These concerns were voiced throughout the application process and at the Planning Committee meeting, but appear to have been ignored: “The Council’s failure to seek such an approval is disappointing, as is the lack of consultation undertaken with Church bodies to understand the impact of both the design and the implementation of works on the consecrated open space. We hope that a satisfactory agreement can be reached and will do all we can to ensure one is found.” Rev Dr Cannon Stephen Evans Rector of St Marylebone Parish Church.
Further, the development of the site would involve the potential loss of an old and well established London Plane Tree, which in normal circumstances would in itself preempt any planning development in the immediate area.
We also understand that the Council have failed to procure the required party wall agreement with the residents of the adjoining Newcastle House.
However, in the face of all of this, the Planning Committee went on to reach the same conclusion as the WCC Director of Developments had suggested could be reached: “..on balance, ...the potential benefits of the scheme, notably the delivery of new homes including affordable homes, substantially outweigh the policy conflict with regards to proceeding with the scheme”.
All this leads one to ask - just how many local objectors, policies, trees, churches and general conflicts of interest would need to have lined up against this application in order to outweigh the desirability of affordable housing - and just where the “New Dawn for Planning” is leading to in Marylebone.
