Agenda item

[To be introduced  by the Cabinet Member for Housing and Regeneration. Report of the Director for Planning, Regeneration and Development.]This report will seek approval to appropriate land to progress the THFC stadium and associated development.

The Cabinet Member for Housing and Regeneration introduced the report which  set out what will happen to properties which  will be affected by ‘Right to Light’ if the planning application for the development of the  Spurs Stadium is agreed by the Planning Sub-Committee on the 16^th December 2015. The report included the consultation undertaken with affected properties and the reasons why the recommendations were coming forward which were to progress the development and also, in turn, the regeneration of this area.

Councillor Strickland referred to a letter received late in the afternoon of the 15^th December from surveyors representing the owners of a number of high street properties.  This was tabled for Cabinet Members to consider. In the letter they asserted that the Council was premature in its approach to this issue the effect of which, it was claimed, was to intervene in a commercial dispute and to reduce the amount of compensation payable where rights may be interfered with.

Councillor Strickland explained that officers had considered the letter which did not raise any new issues not already considered in the report before Members. Members were asked to appreciate that section 237 was a legal mechanism to protect the often competing interests of the various parties involved.

Councillor Strickland advised that, in the first instance, it preserves the entitlement to compensation which if not agreed is determined by an independent Tribunal. In the second instance it protects a developer’s ability to carry out consented development. Finally it helps secure the Council’s legitimate policy aspirations and growth agenda arising out of the London Plan targets.

In response to a question from Councillor Engert on the availability of affordable housing in the stadium development, it was noted that there were no affordable homes planned. There had been independent advice received from KPMG and viability advice by planning on this issue. This stadium development was not fundamentally a housing scheme.

In response to a second question, the Cabinet Member agreed that a fair and proportionate consideration had been given to human rights, in respect of properties right of light, and actions undertaken to meet this right were considered fair, hence a report coming forward to Cabinet.

It was noted that the cost of the surveyor set out in delegated actions report had been indemnified by Spurs.

The Director for Planning, Regeneration and Development also drew Councillor Engert's attention to paragraph 6.2.8 which referred to the development as a ‘catalyst’ for a set of wider regeneration initiatives which would deliver the mix and balance across North Tottenham area.

Further to considering the report and tabled letter Cabinet:

RESOLVED

To agree the following, subject to the THFC’s revised planning application for the NDP (HGY/2015/3000) securing a positive resolution to grant planning approval on the 16^th December 2015:

1. To acquire the freehold interest in the THFC Site, pursuant to Section 227 of the Act  for planning purposes;

2. To dispose of the THFC Site to Meldene Limited (a THFC company) pursuant to Section 233 of the Act;

3. Resolves that it is the intention of the Council that its resolutions under Sections 227 and 233 are intended to attract the application not only of Section 237, but also any replacement, whether Clause 137 of the Housing and Planning Bill (as enacted) or otherwise;

4. That the terms of the acquisition and the disposal for the THFC Site shall be based on the Heads of Terms (“the Heads of Terms”) attached at Appendix 2 (exempt) of this report;

5. To give delegated authority to the Director of Regeneration, Planning and Development in consultation with the Assistant Directors of Corporate Property & Major Projects and Corporate Governance to agree any variation to the Heads of Terms;

6. To give delegated authority to the Director of Regeneration, Planning and Development and the Chief Operating Officer to agree the compensation from THFC in relation to Council owned properties that have their freehold right of light infringed by the revised NDP; and

7. To give delegated authority to the Assistant Director of Corporate Property & Major Projects in consultation with the Assistant Director of Corporate Governance to agree the deed of release for these properties.

Reasons for decision

The overarching rationale for supporting all of the recommendations above is that the Council wishes to support and facilitate the delivery of the revised NDP scheme, which as mentioned above, will bring significant public benefits, act as a catalyst for wider regenerative change and will deliver the objectives for north Tottenham as set out in the SRF and the AAP. If the Council were to not agree these recommendations, the revised NDP scheme will be at risk of injunction and will not be able to secure the necessary funding.

The key reason for supporting the acquisition and disposal of the site, recommendations (i) and (ii), is that it will facilitate the delivery of the revised NDP scheme contributing to the economic and social well being of the area. The development is strongly in the public interest and without such acquisition and disposal neither THFC nor anyone else can or will carry out the development. The detail consideration and rationale for both recommendations (i) and (ii) which will have the effect of engaging Section 237 is set out in paragraphs 6.12 - 6.48 of this report.

The reason for recommendation (iii) is that the Housing and Planning Bill is currently progressing through Parliament. This contains Clause 137 which will (if enacted) lead to the repeal of Section 237 and its replacement with a similar provision making available Section 237 powers to a wider number of public bodies. It is anticipated that transitional provisions will also be enacted to “save” any resolutions made in order to give effect to Section 237. But it is felt that the Council should resolve that its resolutions under Sections 227 and 233 are intended to attract the application not only of Section 237 but also any replacement whether Clause 137 or otherwise.

The reason for supporting recommendations (iv) and (v) are that the Council will need to have agreed terms for the disposal of the THFC Site. Without agreed terms, the acquisition and disposal of the site could not go ahead.

The reason for supporting recommendation (vi) is that the Council is entitled to compensation for the infringement of its rights of light by the revised NDP in respect of its properties. Clearly, the Council would not wish to threaten the delivery of the development through seeking an injunction. Accordingly, Officers have sought independent rights of light advice and are finalising negotiations on the level of compensation the Council is entitled.

Alternative options considered

Officers have considered not acquiring the THFC Site for planning purposes.The implication of this option is that the revised NDP will be at significant risk of injunction to stop the development from being carried out.

Historically, developers of tall buildings have been able to avoid injunctions by reaching agreements with affected neighbours for the release of their rights of light upon the payment of compensation.

When it was not possible to resolve claims by negotiation, the courts use their discretion to award damages instead of an injunction based on compulsory purchase compensation principles where:

·         The interference was small;

·         It could be estimated in money;

·         It could be adequately compensated by a small payment; and

·         An injunction would be oppressive.

However, recent case law, in particular a 2010 case relating to a development in Leeds, has re-affirmed that an injunction remains the primary remedy for any party whose rights of light will be infringed by a proposed development.

The effect of this court decision is that it has become significantly more difficult to reach negotiated agreements with affected owners of rights to light.

In turn, this has made it much more difficult for developers to secure development finance as funders require all injuncitable rights to light to have been released through appropriated negotiated agreements before they will provide funding.

The revised NDP will help facilitate the wider regeneration objectives set out in the SRF and meet the site requirements defined within the AAP. Consequently, Officers believe that removing the risk of injunction and any detrimental impact injunction would have on the funding required to deliver the revised NDP is the only option. Officers therefore, recommend that the Cabinet agree the recommendations above.