In September 2023 the Royal Borough of Greenwich (RBG) issued an enforcement notice of potentially unprecedented scale. The notice required the demolition of a 23 storey development totalling 204 units. Fincraft Limited (Fincraft) appealed on multiple grounds, including that planning permission should be granted under section 174(2)(a) Town and Country Planning Act 1990.
In 2012, RBG granted planning permission for Mast Quay Phase II – a mixed use development of 218 residential units and commercial floorspace subject to 47 conditions (the 2012 Scheme). Despite its description, the permitted development was 204 units. In April 2015, 19 of the 47 conditions were varied.
The original enforcement notice, issued by RBG, listed 26 material deviations from the 2012 Scheme, which were refined to a list of 11 during the appeal. These included the development having a larger footprint, differences in external appearance, reduced provision of community amenity space, omission of child play space and changes to some residential units which impacted wheelchair accessibility. Fincraft accepted that the 2012 Scheme, as varied, was not lawfully implemented and the development that existed on site did not have planning permission.
There are two key points coming out of this decision.
1. The scope to amend a scheme as part of a section 174(2)(a) appeal
Fincraft proposed a number of “optional enhancements” should the Inspector judge that any of those were necessary to make the existing development more acceptable.
The Inspector decided that with the addition of two of the optional enhancements, and the imposition of a condition requiring the removal and replacement of the “visually intrusive and uncomplimentary” orange cladding, the development would be of “sufficiently high quality” to address concerns about impact on the character and appearance of the area. The Inspector also held that with the removal of the orange cladding, there would be no harm to heritage assets.
2. Approach to viability in enforcement appeals
Fincraft argued that the 13.7% affordable housing provided was, for viability reasons, the maximum that could be achieved. RBG, on the other hand, argued that the build costs of the development and developer profit should not be taken into account, and on that basis policy compliant 35% affordable housing should be provided.
The Inspector noted that the “bare facts of the case” were that Fincraft had built a development that is not in accordance with the 2012 Scheme and is unlawful unless, and until, planning permission is granted and has been implemented. In that sense, the appellant had risked the build costs in advance of obtaining planning permission. Referring to his own decision in the 3-5 Kingsland High Street, Hackney enforcement appeal, the Inspector held that it was “fair and reasonable” to discount build costs and developers profit in assessing viability, as doing otherwise would be contrary to government policy.
In addition to the retention of 13.7% affordable housing, Fincraft were required to make a financial contribution of £4.4 million, being the sum the Inspector considered was equivalent to 21.3% of residential units calculated in accordance with RBG policy.
The decision
The Inspector concluded that planning permission should be granted provided it was subject to conditions ensuring modifications to the development. However, the sword of Damocles hangs over the development – if the conditions are not complied with, Fincraft will have to comply with the terms the upheld enforcement notice and remove the development.
The Inspector considered that the provision of 204 residential units (of which 28 units are affordable) in a Borough with a “woeful” undersupply of housing and an affordable housing contribution of £4.4 million were “compelling”.
Practical implications
Whilst this appeal was successful, it highlights the risks and high stakes of building out a scheme of this scale unlawfully. The Inspector did not consider that the appellant was undertaking intentional unauthorised development – if they had done so, that would have been a material consideration. Given the scale of the development, arguably that could have resulted in a different decision. At the start of this reasoning the Inspector emphasised that it is an “important planning principle that if a concern can be overcome by imposition of a condition on a planning permission, whether at application stage or on appeal, then planning permission should not be withheld“. In this case the “optional enhancements” required by the Inspector (which did include all those tabled by the appellant) were sufficient to overcome certain issues on the scheme. The decision is silent on the treatment of those for viability purposes so it is assumed the cost of those will simply need to be absorbed by Fincraft. This highlights the role that a carefully crafted menu of potential modifications, and their application via condition, can play in overcoming issues which might otherwise be fatal to an appeal.
