10th August 2021
Reference - IL Ref 0579
For the attention of:
Yoo Capital – Mr Lloyd Lee, The Leader of the Hammersmith & Fulham Council – Councillor Stephen Cowan, & The Mayor of London
Yoo Capital’s Proposals
Dear Sirs,
1) The SBMTA trusts that you are well.
2) The SBMTA has been led to believe that Yoo Capital wishes to submit a planning application to the Hammersmith & Fulham Council in December 2021 to build residential homes and commercial offices on two neighbouring land areas which neighbour Shepherd’s Bush Market.
3) The first land area is formerly known as the Old Laundry Site Area, which is owned by the Hammersmith & Fulham Council, and it is understood that Yoo Capital has ambitions to build a six-storey residential block on this land.
4) The second land area is formerly known as the St Mungo Broadway Centre, which is owned by YC SBML, and it is believed that Yoo Capital wishes to build a nine-storey commercial block on this land area.
5) Both land areas neighbour one another, and border along the east side of Shepherd’s Bush Market.
6) If Yoo Capital’s ambitions were limited and restricted to building this residential home and commercial office development on only these two land areas, then, the development may cause a level of disruption and disturbance for several years, and raise some objection due to: -
(a) the aspiring height of the two towering structures that may cause permanent impairment to the sightlines of neighbouring parties.
(b) The months of construction may lead to significant noise and air pollution.
7) However, the truth of the matter is that Yoo Capital’s ambitions exceed this scenario and go far beyond that which today’s society may wish to tolerate.
8) Yoo Capital’s ambitions are not merely to build on the St Mungo Broadway Centre and the Old Laundry Site Area but to expand their development and encroach across the land boundaries and build on top of Shepherd’s Bush Market land.
9) Building residential homes and commercial offices on top of Shepherd’s Bush Market land raises some pertinent and fundamental questions including: -
(a) What does Shepherd’s Bush Market represent?
(b) Should Shepherd’s Bush Market land be protected in order to retain its 106-year long-standing traditional purpose and character?
(c) Will allowing a housing and commercial office development build on Shepherd’s Bush Market land cause an unacceptable level of uncertainty, and inflict a financial, physical, and social compromise on various communities?
10) The SBMTA encloses the judgement of ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169 (please refer to PDF Attachment 1).
11) Section of the judgement[1] may also be viewed on the below link: https://www.casemine.com/judgement/uk/5b2897bd2c94e06b9e199eac
12) The 2016 Court of Appeal judgement, ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169, by Lord Justice Lewison, Lord Justice Longmore, and Lord Thomas of Cwmgiedd, CJ, raises some relevant points when considering Yoo Capital’s ambitions.
13) The SBMTA has lifted sections of the 2016 judgement and quoted them (in " " & italic font), wishing to raise the concern that certain rights relating to the Shepherd’s Bush Market community should not be overlooked.
14) The Judgement by Lord Justice Lewison in Paragraph 1 reads: -
(Paragraph 1)” …The market is part of the social fabric of the area and provides a retail offer that differs from and is complementary to that offered by Westfield and other retail property in and around Shepherd's Bush. The character of the market is one of small independent traders providing a diverse mix of products in food, fashion and household, mainly to the local population. It provides a social function to the local community. It is ethnically diverse in its nature and offers the opportunity for independent businesses to trade in an affordable environment not found elsewhere in the area...”
(Paragraph 3) “The planning framework accompanying this policy, which the Council adopted on 23 October 2013, recognised that any redevelopment scheme should repair and improve the market's physical fabric, expand the diversity of retail and: " crucially maintains existing traders and provides them with the security to ensure that the market can continue to operate without interruption and serve existing customers and communities."
15) Paragraphs 1 and 3 raises several relevant points, including: -
§ The social function of Shepherd’s Bush Market must be always maintained and protected for the local community.
§ The affordable environment of Shepherd’s Bush Market, not found elsewhere in the area must always be retained.
§ Any scheme that may affect Shepherd’s Bush Market should repair and improve the market's physical fabric, expand the diversity of the market retail offer, and retain the market’s ethnically diverse unique character.
§ The existing traders must be retained, and they must be provided with the guarantees that the market will continue to operate without interruption and continue to serve the existing customers and communities.
16) Paragraph 12 (ii) of the 2016 Court of Appeal judgement reads:
(Paragraph 12(ii)) “Would it contribute to the economic, social or environmental well-being of the area? She concluded at [12.6.10] that it had the potential to do so; but said at [12.6.11] that those benefits would only materialise if the essential ingredients and uniqueness of the Market were retained. She concluded at [12.6.36] that the scheme did not provide adequate mechanisms for retaining the number, mix, and diversity of traders, with the consequence that the scheme would not fully achieve the economic, social, or environmental well-being sought.”
§ Paragraph 12 raises the opinion that the Shepherd’s Bush Market businesses should hold suitable safeguards for retaining, at all times, the number, mix, and diversity of traders in Shepherd’s Bush Market.
§ Furthermore, the economic, social, and environmental wellbeing of the market businesses should be always maintained.
17) Sections of Paragraph 13 of the 2016 Court of Appeal judgement discusses the Government inspector’s findings regarding Shepherd’s Bush Market, and subsequently reads:
“…It is ethnically diverse in its nature and offers the opportunity for independent businesses to trade in an affordable environment not found elsewhere in the area.
4.3.9 The market also offers opportunities not available elsewhere for the local population (particularly among the ethnic communities) to establish small and start-up businesses in affordable premises, a role that will be enhanced by the regeneration scheme.
4.7.1 The Council has always maintained that protection and continued operation of existing traders is its central objective.
4.7.5 It was crucial for the Council to be assured that there were sufficient commitments from the developer to ensure retention of existing traders in the market…”
§ Paragraph 13 presses the repeated message that bringing disruption to the market businesses or reducing the number of ethnically diverse retail businesses in Shepherd’s Bush Market for any period may be viewed as unreasonable.
18) Paragraph 21 of the 2016 Court of Appeal judgement reads:
(Paragraph 21) “She also said at 12.6.20 that the sketches images and examples referred to in the material supporting the planning application “give me little confidence that the replacement market will maintain the diversity and multi-ethnic culture of Shepherds Bush Market,” giving reasons for her conclusion. In essence she thought that what was proposed was much more up-market than the current Shepherd’s Bush market.”
§ Paragraph 21 of the 2016 Court of Appeal judgement comments on the Government Inspector’s view that Shepherd’s Bush Market would have to maintain its diversity and multi-ethnic culture even after a development is completed.
It may be viewed that the loss of Shepherd’s Bush Market’s diversity and multi-ethnic culture during and after the completion of any development would and should not be tolerated.
19) Paragraph 23 of the 2016 Court of Appeal judgement reads:
(Paragraph 23) “…Close examination of the evidence, however, has led me to conclude that the current Orion proposal lacks the mechanisms to be assured of retaining the number, mix and diversity of traders in the way explained above."
§ Paragraph 23 of the judgement comments on the proposal of the previous developer (Orion) and criticizes the lack of mechanisms to safeguard the tenancy numbers, mix, and diversity in the market.
§ It is viewed that any development affecting Shepherd’s Bush Market must implement robust assurances (which can be enforced by each market business) ensuring that the retaining number, mix, and diversity of the market businesses in the market is never compromised.
20) Paragraph 25 of the judgement comments on the Government Inspectors conclusions, and reads:
(Paragraph 25) She came to her final conclusion at [12.11.4]:
“12.11.4 As explained earlier, the guarantees and safeguards are not sufficiently robust to be assured that genuine opportunities exist for current traders or shopkeepers (or similarly diverse businesses) to continue trading in the market and Goldhawk Road. Without such assurances, there is a real risk that the market and replacement Goldhawk Road shops would not provide the ethnic diversity, independent or small scale retailing environment central to the appeal of this part of the town centre. While such uncertainties exist, the personal losses and widespread interference of private interests arising from confirmation of the order cannot be justified.”
§ Paragraph 25 of the judgement raises some key points which Yoo Capital’s proposals are viewed not to adequately accommodate for.
§ The Market businesses require guarantees and robust safeguards which allow them to protect their livelihoods from any compromise.
§ Comprehensive mechanisms and assurances must be established to ensure that the ethnic diversity and retail offer of the market are not impaired, at any time.
21) There is concern that Yoo Capital’s proposals may: -
§ interrupt and compromise the operation of the market businesses.
§ invoke significant economic loss to the long-standing market businesses
§ inexcusably damage the character of the market.
§ damage the economic and social fabric of the market and the communities which it serves.
§ Fail to provide sufficient safeguards to retain the tenancies of all the market businesses during the development and after the development’s completion.
22) The developers - Yoo Capital, may argue that for their efforts to be worthwhile, they must achieve their economic aspirations, and build their residential home and commercial office development as large as possible. Yoo Capital may insist that the development must therefore spread beyond the neighbouring land areas known as the Old Laundry Site and the St Mungo Broadway Centre Land and build on top of Shepherd’s Bush Market land despite the repercussions caused to other parties.
23) One must ask the question, whether we place the profits of a private developer over that of the ethnic and social values which Shepherd’s Bush Market offers, and which are discussed in the 2016 judgement of ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169, by Lord Justice Lewison, Lord Justice Longmore, and Lord Thomas of Cwmgiedd, CJ.
24) It is viewed that Yoo Capital should have initially consulted with all of the affected parties and should have already raised the fundamental question as to whether it is acceptable to build their towering housing and commercial office development on Shepherd’s Bush Market land. To date, Yoo Capital seem to have avoided consulting with all affected parties on this fundamental concern.
25)
Yoo Capital’s proposals presently seek for the Shepherd’s Bush Market businesses to relinquish their leases, and for the tenants to either: -
(a) take a sabbatical from Shepherd’s Bush Market for a significant period, which may result in a likely decline of tenancies in the market, or
(b) “Sell Up”, which subsequently weakens the retention of the tenancies in the market, or
(c) continue to trade in Shepherd’s Bush Market, whilst (i) suffering disruption caused by the housing and office development, for several years, and (ii) possibly suffer the repercussions of being relocated, and (iii) suffer an economic loss due to the dissolving retention of other tenancies in the market, and (iv) endure financial losses due to insufficient guarantees from the developer to guarantee 100% of the tenants’ losses.
26) Like the proposals of the previous developer in 2014 (known as Orion), Yoo Capital’s proposals also lack the robust safeguards to retain and protect Shepherd’s Bush Market’s tenancy mix, diversity, and numbers, throughout and after the completion of the scheme. It is essential that Yoo Capital’s proposals do not compromise the existing market businesses’ social, economic, and environmental wellbeing.
27) Perhaps Orion’s proposals of 2014 are similar to that of Yoo Capital’s, as both companies may have similar associated business partners.
28) Paragraph 25 of the Court of Appeal judgement reads:
“While such uncertainties exist, the personal losses and widespread interference of private interests arising from confirmation of the order cannot be justified.”
§ This expressed concern within the judgement raises the question, “Should Yoo Capital be permitted to amplify their profits by building this housing and office scheme on Shepherd’s Bush Market land if the repercussions of the scheme lead to the uncertainty of the market businesses, causing personal losses to the traders, and a compromise to the social well-being of the area.”
29) Paragraph 33 of the Court of Appeal Judgement reads:
“Where (as here) the challenge is based on a failure to comply with a relevant requirement, section 24 (2) of the 1981 Act empowers the court to grant relief if it is satisfied that the interests of the applicant have been “substantially prejudiced” by the failure to comply.”
§ The Shepherd’s Bush Market traders have endured many difficulties and upset during past years, and it is therefore hoped that no prospect of prejudice awaits them in the coming months and years.
The Hammersmith & Fulham Council
30) The Hammersmith & Fulham Council are aware of the struggles suffered by the Shepherd’s Bush Market businesses for the past seven years and the Council must realize that further uncertainty may break many of the market businesses.
31) The Hammersmith & Fulham Council are the owners of the neighbouring land area formerly known as the Old Laundry Site Area and subsequently, it seems that the Council may have the ability to ensure that the Shepherd’s Bush Market businesses will no longer be placed under threat.
32) Paragraph 59 of the 2016 Court of Appeal judgement holds the words of Lord Thomas of Cwmgiedd,CJ, and reads:
Paragraph 59 “…The livelihoods of the traders are put at risk by the proposed development. The Inspector has given her reasons on a matter of vital concern to the traders in a way that could readily be understood by them…”
33) The Shepherd’s Bush Market Tenants’ Association implore the Hammersmith & Fulham Council, Yoo Capital, the Greater London Authority, and the Mayor of London to ensure that the livelihoods of the traders and the character of Shepherd’s Bush Market are not put at risk.
Kind regards,
The Shepherd’s Bush Market Tenants’ Association