The Shell Centre is currently the headquarters of the Shell International Petroleum Company.
Built in 1954, at the time it was an innovative and controversial building. But love it or hate it, the plans to redevelop the site are a disaster, demonstrating all of the worst excesses of the current London development market.
- Eight tall buildings are packed in so tightly that more than 30% of the homes will not have adequate daylight. Of course, this 30% includes the affordable housing Shell is building for older people.
- The buildings will obliterate views of the Royal Festival Hall and threaten to damage the setting of Parliament, a World Heritage Site.
- The development will build on publicly accessible open space. The replacement open space will be in near permanent shadow (99.3% of the square will get less than 2 hours of sun a day).
I had been asked by Marina Thaine to help the local community around the development contest the scheme at a public inquiry.
Permission was granted by the Secretary of State in 2014 to build. For reasons that will become obvious I decided to challenge that decision through the courts.
Much needed housing?
What do we gain from the Shell Centre development? Yet more luxury housing. Unaffordable to the many many people in housing need. The developer’s own estimates is that the average sales price of the development will be £1600 a square foot – that is almost £800,000 for an average sized one bedroom flat (in reality the flats are being sold for much more).
The developers have no pretence of building homes to meet the needs of Londoners. Their investor presentation cites “international tycoons”, “Middle-Eastern couples” and “wealthy international students” as potential target markets. [pullquote] Investor’s presentation cited “International Tycoons” as a target market [/pullquote]
Despite the huge amount of wealth that will pour into this development, the developers claim it is financially unviable to build affordable housing. However, financial viability for them means extracting huge profits way above what is required: twenty percent annually on an ungeared Internal Rate of Return basis. Huge amounts of value will be created by the decision of government to grant planning permission, but the developers are unwilling to share that value with the public.
In order to get round planning rules requiring developers to provide affordable housing, surveyors acting for the developer produced two sets of confidential valuations. The lower ones were given to Lambeth Council and showed a lower profit, which helped justify the claims that the developer could not build affordable housing.
A broken process
If you are left wondering how such an unnecessarily harmful development could get around the planners, the Shell application showed just how broken the planning system has become.
Lambeth Council organised private meetings with the members of their planning committee and the developers to allow them to press their case. In total the developers spent 4 hours with planning committee members discussing their application and no minutes were taken. Officers were outnumbered by representatives of the developer by 10 to 1.
Objectors had a total of 9 minutes at the planning committee meeting.
The decision was then called-in by the Secretary of State Eric Pickles who caused a public inquiry to be held, presided over by a Planning Inspector, Mr John Braithwaite.
Again, the process was lacking from day one. The Inspector was openly hostile to the objectors. Objectors were cut off by the Inspector when putting questions to the developer, yet the developer was allowed to run on for hours past their allotted time. Evidence was accepted by the Inspector from the developer over 1 month late. But when objectors came to give their reply to that late evidence the Inspector sent it back because it was not stapled (and didn’t bother to wait 5 minutes for it to be stapled for him).
The objectors had no doubt what the outcome would be. The serious issues being raised by them were simply not being listened to by the Inspector who appeared to have already made up his mind before hearing the evidence.
The outcome was a bizarre report.
- Eight Tall buildings directly behind the Royal Festival Hall were deemed to not to be in the setting of the Royal Festival Hall.
- The conclusions of the developer’s economic viability assessment were accepted by the inspector, despite the Inspector not having seen that evidence.
- The Inspector claimed that the objectors produced no evidence on the rates of return of the developer being too high (when they had).
- The Inspector claimed that no one had made the case that the setting of Parliament included the South Bank of the River Thames, when Westminster City Council had been present throughout the entire inquiry to make precisely that point.
- The Inspector said that a previous planning permission granted to Shell meant that it would be ‘inevitable’ that the open space on the site would be built on, despite the fact that the Chairman of Shell had written to the inquiry to say they had no intention of building that scheme.
I decided to challenge the decision to grant planning permission though the courts. It was my view that the decision was so bad, and the process so deficient, that it was unlawful. If unchallenged the development would set a highly damaging precedent for London, allowing a development free-for-all, regardless of the damage caused.
Despite having no legal representation and facing some of the top planning barristers in the country I took the case on as a litigant in person.
On 15 December, before Mr Justice Collins at the Royal Courts of Justice, I had my day in court.
The conduct of the planning inspector – “Unacceptable” but accepted
When he finally made his decision, the judge was highly critical of the Inspector. He said that the behaviour of the conduct of the Inspector was “unacceptable” and akin to “judicial misconduct”. He writes in his judgement:
“The essential requirement is that whatever preliminary views he [the Inspector] may have formed, he keeps an open mind and is prepared to be persuaded by the evidence produced if it shows his preliminary views are wrong. It is clear that in this case the inspector’s conduct fell short of that which should have been displayed.”
“Mr Kolinsky [the barrister representing the Secretary of State] accepted that the inspector may have given the unfortunate impression that he was more favourable to the developers than to the objectors. I have no doubt that the inspector’s conduct was such as to give rise to a real concern that he was unfair to the objectors. He seriously mismanaged his conduct in the inquiry. It may well be that the individual decisions he made were justifiable, but the way in which he made them was unacceptable. Observations which are against a party’s interests may be reasonable, but care has to be taken to ensure that they do not give rise to the wrong impression. It is of course essential that parties to an inquiry feel that they have had a fair hearing and that their case has been properly taken into account. That did not happen in this inquiry so far as the claimant is concerned.”
Despite this, he did not find in my favour. Mr Justice Collins concluded by saying that although I had suffered prejudice during the public inquiry, that prejudice was not enough to quash the decision in law.
Court of Appeal
In April 2015 I decided to challenge the decision of Mr Justice Collins in the Court of Appeal on the grounds that his findings of fact were inconsistent with the judgement that the inspector did not appear to be bias.
On 30 April the Court of Appeal accepted my case on the single ground of the apparent bias of the inspector. Lord Justice Sullivan accepted that there was an apparent contradiction between Mr Justice Collins’ findings of fact, and his conclusion that the inspector had not appeared to be bias.
Because it was deemed an important planning case the it was expedited and scheduled to be heard two weeks after permission was granted. This obviously put me at a substantial disadvantage. I was fighting this case on my own against a phalanx of lawyers. However, despite this I managed to find a barrister, Mr Jonathan Derby, who took on my case pro-bono. On the day, facing him were 6 barristers, whereas at the High Court, facing me, there were merely four.
The justices were clearly shocked by the battery of lawyers in front of them, and unimpressed by the show of force. When it was time for their side to put their case Lord Justice Longmore commented that he saw absolutely no reason why they all needed to be there and they should decide amongst themselves which one of them was going to speak.
Because the hearing was on a single ground it was only scheduled for a half day.
The three judges of the Court of Appeal decided that there was no apparent bias on the behalf of the planning inspector who recommended approval for the scheme clearing the way for Shell to start demolition.
The facts, the difference in the time given to the parties to make their case by the Inspector, and the treatment of the evidence, were not disputed, they could not be as the Inspector himself chose not to dispute them. But in the judgement of Lord Justice Sales all of the discrepancies and more were simply explained away as being simple mistakes on the part of the inspector or as having no material impact on the fairness of the process.
The judges went as far as to say that they found no evidence that the inspector behaved discourteously to me or anyone else, when even the Secretary of State’s own barrister, who was employed to make the best case he could to defend the inspector, was forced to admit, both at the High Court and Court of Appeal that the inspector at the very least may have come across as discourteous to the objectors. A fuller comment and a copy of the judgment can be found here.
The court awarded costs against me and I was left with a £5,000 legal bill. Though crowd funding and help from friends I managed to raise this.
Shell put up the barricades on in late July 2015 with a view to start demolition. Soon London will see views of great buildings like the Royal Festival Hall trashed, a large piece of open space in central London demolished and all to get yet more unnecessary luxury homes.
My only consolation is that I did what I could to expose many of the deficiencies in the process. My only hope is that they are avoided on future applications, yet I fear they won’t.