8th September 2021
Reference – IL Ref 0590
For the attention of: -
The Mayor of London
Councillor Stephen Cowan – The Hammersmith & Fulham Council
Mr Lloyd Lee – Yoo Capital
1) Shepherd’s Bush Market is succinctly described within the first paragraph of the judgement of Lord Justice Lewison, Lord Justice Longmore, and Lord Thomas of Cwmgiedd, CJ, in the Court of Appeal case - ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169[1], and 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. Within the market there are 137 separate retail pitches, some housed in railway arches, some in shops and others in stalls occupying the central spine and eastern side of the market.’
2) Section 4.3.2 of the CPO report to the Secretary of State for Communities and Local Government by Mrs Ava Wood Dip Arch MRTPI[2] discusses Shepherd’s Bush Market, and reads: -
“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.”
3) The Hammersmith & Fulham Council replaced the Core Strategy (2011), and Development Management Local Plan (2013), with the February 2018 Local Plan[3]. The Council’s ‘Local Plan’ opens with ‘The Leader’s View’ (Councillor Stephen Cowan) and reads: - “Our borough is on the up with exciting and bold opportunities ahead and our vision is to grasp these and make sure this prosperity is shared – and no one is left behind.”
4) The Shepherd’s Bush Market businesses certainly do not wish to be left behind, however, further to this, there is the question as to whether the Hammersmith & Fulham Council’s ‘Local Plan’ will ensure the correct safeguards to protect the economic, social, and environmental well-being of the Shepherd’s Bush Market businesses, whilst retaining the number, mix and diversity of all the existing traders, at all times?
5) Transport for London had handed the stewardship of the market over to the former developer/steward of Shepherd’s Bush Market known as ‘Orion Shepherd’s Bush Market Ltd.’ in February 2014. The Shepherd’s Bush Market businesses have since had to protect themselves, for several years, from the developer’s ambitions.
6) A further handover of the Shepherd’s Bush Market’s stewardship occurred in Autumn 2020, from Orion Shepherd’s Bush Market Ltd. to the developer/landlord known as ‘Yoo Capital Shepherd Bush Market Ltd.’ (YC SBML). This handover was hoped to be the optimistic opportunity to lift the depression and uncertainty which had previously fallen upon the market businesses.
7) Yoo Capital has recently revealed to the market community that they wish to submit a planning application to the Hammersmith & Fulham Council and build a housing and office development on Shepherd’s Bush Market land and on the neighbouring lands which lie east of Shepherd’s Bush Market. Yoo Capital’s proposals include building on the land formerly known as ‘The Old Laundry Site Area’, which currently belongs to the Hammersmith & Fulham Council. Yoo Capital’s proposal to spawl their development onto Shepherd’s Bush Market land has led to Yoo Capital proposing for the Market businesses to either (i) sell up, (ii) leave the market for a sabbatical, or (iii) stay in the market and suffer the possibilities of interruption, relocation, and further disturbance.
8) Yoo Capital has further revealed that they wish to alter the lease terms & conditions, which includes, but is not limited to, the market traders being bound by contract to pay ‘open market value’ at the midpoint of the new lease period.
9) This specific proposal of Yoo Capital’s may be viewed to be contentious, as (i) it veers away from the existing established lease terms & conditions (which a tenant may insist on remaining the same), and (ii) it may undermine the tenant’s ability to exercise the ‘1954 Landlord & Tenant Act’ and argue future rent levels, and (iii) it may damage the affordable environment of Shepherd’s Bush Market.
10) When considering the details of Yoo Capital’s proposals, it is apparent that the prospect of the long-term affordability of the market may be severely under threat.
11) Paragraph three of the Court of Appeal judgement[4] raises the importance of repairing and improving the physical condition of the market and retaining the existing tenancies of the market businesses, and reads: -
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.”
12) The SBMTA raises the question to the Hammersmith & Fulham Council as to how the Council’s 2018 Local Plan will (i) protect the retention of the Shepherd’s Bush Market tenancies? And (ii) how they will ensure the long-term affordability of Shepherd’s Bush Market.
13) Given the unique ethnic diversity of the small independent Shepherd’s Bush Market businesses and taking into consideration the service which these businesses provide to so many low-income communities, there is the question as to whether both the Hammersmith & Fulham Council and the Mayor of London, will perform Equality Impact Assessments in regard to the repercussions that may be invoked by Yoo Capital’s actions.
14) When considering the future of Shepherd’s Bush Market, one may wish to bear consideration to the 2014 judgement of the Government Inspector - Mrs Ava Wood Dip Arch MRTPI[5] and to the 2016 Court of Appeal judgement of Lord Justice Lewison, Lord Justice Longmore, and Lord Thomas of Cwmgiedd, CJ, - ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169.
15) For example, over forty Arch structures sit underneath the railway viaduct and run along the full length of the west side of Shepherd’s Bush Market, between the Goldhawk Road to the Uxbridge Road. The Arches are the original structural of Shepherd’s Bush Market and are a significant and iconic part of the market’s character.
16) The condition of the Market Arches was identified several years ago as poor, and the lack of funding and repair to this infrastructure by the former landlord - Orion Shepherd’s Bush Market Ltd. may be considered to have worsened the situation.
17) The Quarterbridge Report (2007), the GVA Grimley Report (2008), and the Parson Brinkerhoff Report (2008 and updated in 2013), collectively affirm that the condition of the Shepherd’s Bush Market Arches is poor.
18) Paragraph 20 of the 2016 Court of Appeal Judgement[6] refers to the report by the Government Inspector – Mrs Ava Wood, and reads: -
Paragraph 20: She then commented on the very poor physical condition of the arches and said that they were “historically important elements of the market, forming the backbone to the trading environment.” She continued at [12.6.19]:
“Yet neither the Shepherds Bush Market Works (identified in the s 106) nor cost breakdown provided in evidence clarifies with any certainty that the arch units would be upgraded as part of the market refurbishment.”
19) Paragraph 22 of the Court of Appeal judgement continues the concern, stating: -
Paragraph 22: “…However binding/enforceable measures are needed to be assured that the replacement premises (stalls and shop units) would be suitable and affordable enough for traders to return to the site in sufficient numbers and maintain the market's character.
Moreover, businesses occupying the arch units must also be provided with the security that their premises would be upgraded to address the defects identified in the Parsons Brinkerhoff report and which fall within the owner's responsibility. In the absence of clear assurances along those lines, the social and environmental well-being sought is not likely to be achieved should the order be confirmed.”
20) The Government Inspector highlighted that if a landlord/developer did not bear the responsibility of comprehensively repairing the Arches, and instead, placed financial burden and uncertainty on the market traders to tackle the worsening condition of the Arch structures, then it could lead to the demise of the existing market businesses.
21) This matter is further discussed in Paragraphs 24, 32, and 43 of the 2016 Court of Appeal judgement: -
22) Paragraph 24 of the 2016 Court of Appeal judgement:
Paragraph 24: “In section 12.10 of her report the inspector drew the threads together. She referred to the protection offered by Article 1 of the First Protocol to the ECHR and to Article 8 of the ECHR. She referred to a number of measures that would be put in place for the protection of traders; but continued at [12.10.6]:
12.10.6 All of that said, without full knowledge of the replacement accommodation in the new development, it is not possible to establish whether new trading conditions would be sufficiently affordable or suited to the needs of traders currently operating in the market. Lack of certainty regarding necessary upgrades to the arched premises also places a question mark over the long-term trading and survival position of businesses occupying the arches.”
23) Paragraph 32 of the 2016 Court of Appeal judgement:
Paragraph 32: “… she turned to the arches. She pointed out at [12.6.19] that there was “no certainty” that the arches would be refurbished; and at [12.10.6] that without full knowledge that it was not possible to establish whether “new trading conditions would be suited to the needs of traders currently operating in the market. Lack of certainty regarding necessary upgrades to the arched premises also places a question mark over the long term trading and survival position of businesses occupying the arches.”
24) Paragraph 43 of the 2016 Court of Appeal judgement:
Paragraph 43: “Her concern about physical conditions was that the level of uncertainty was unacceptable; and that had a direct impact on the financial uncertainty for existing traders. She was also concerned that there was no guarantee that the arches would be put into an acceptable physical condition, even though they were the “backbone” of the trading environment.”
25) Any development scheme that may arise relating to Shepherd’s Bush Market, presumable should be held accountable for preserving the character of the 106+ year old market.
26) Yoo Capital’s ambitions seem to propose removing many of the present market stalls and offer few assurances in comprehensively addressing the very poor condition of the market Arches.
27) The Arches may have been originally designed to leak water from the above railway viaduct, however, the magnitude of the water ingress currently suffered is alarming accelerating the deterioration of the viaduct brickwork. Without doubt, the ingress of water into the Arch units that is suffered is far beyond that which was ever intended to be tolerated. This has led to traders’ stock being water damaged, and much of the retail space within the Arches being no longer sightly nor of practical use.
28) Sadly, it seems that Transport for London (who are the freeholders of the Railway Viaduct and the Arches which are located beneath) and the Shepherd’s Bush Market landlord, may have both been debating as to who is liable for addressing the condition of the Arches and who will pay for the wanting repairs. Perhaps neither party may wish to bear this financial burden.
29) Section 4.3.12 of The Government Inspector’s report reads: -
4.3.12 “The Parsons Brinkerhoff conditions survey report of 2013 identified at least £2,764,632 worth of remedial works to upgrade the market to simply comply with regulations and bring the units up to a “B” standard of condition. Its built environment is in a poor condition. The immediate approaches are unkempt and many of its trading units are in need of either substantial repair or replacement.”
30) The Inspector’s report further comments in Section 7.1.7:
7.1.7 “No funds are to be directed towards repairing or refurbishing the interior of the arches. The arches are iconic to Shepherds Bush Market and its key original feature. They suffer from water leaks, and lack of maintenance over a long period of time has worsened the condition. Failure to upgrade and repair the arches renders the Shepherds Bush Market incomplete…”
31) (CD58 – Parsons Brinkerhoff Report of August 2013 notes that brickwork to arches require significant amount of restoration work to elevate it to “B” condition rating; that the main issue with arch units is damp (traders using buckets is reported); there is significant vegetation growth on walls towards the rear of units. Health and safety issues are also highlighted).
32) Mrs Ava Wood’s Report to the Secretary of State for Communities and Local Government, and the 2016 judgement of Lord Justice Lewison, Lord Justice Longmore, and Lord Thomas of Cwmgiedd, CJ, in the Court of Appeal case - ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169, both highlights the concern that a development scheme that does not comprehensively address the restoration and repairs of the Shepherd’s Bush Market Arches may place uncertainty and an unfair financial burden on those market traders, who occupy the Arches.
33) Satisfactorily remedying the very poor structural conditions of each and every Arch may cost tens of thousands of pounds.
34) Will Yoo Capital bear the full cost of comprehensively repair and improving the condition of every Arch to a satisfactory standard?
35) Will Yoo Capital excuse leaseholders of Arches from any obligation of all dilapidation costs?
36) Yoo Capital’s proposals seem to suggest that they wish to limit the extent of their funding, by placing a cap on their commitment to fund the repair, restoration, and improvement of the condition of each Arch. As discussed in the Government Inspector’s Report and the 2016 Court of Appeal Judgement, this may lead to assigning the financial burden of the repair of the Market Arches onto to market traders, and subsequently, this may be considered to be unfair, forcing the demise of the market businesses.
37) Yoo Capital’s proposal’s may be considered to echo the 2014 proposals of their predecessor - Orion Shepherd’s Bush Market Ltd, and as such, similar requirements may be asked of Yoo Capital, as of their predecessors. If Yoo Capital wishes to build on Shepherd’s Bush Market land, affecting the livelihoods of the market traders, then is it not fair and reasonable to expect for adequate mechanisms to be legally established for retaining the number, mix and diversity of traders, and for the guarantee to be given that Yoo Capital’s proposals will fully achieve the economic, social, and environmental well-being for all the existing Shepherd’s Bush Market businesses.
38) Section 11.4.3 of the CPO report to the Secretary of State for Communities and Local Government by Ava Wood Dip Arch MRTPI, perhaps summarises this correspondence best, and reads: -
11.4.3 “The market is an important part of the diverse, lively character of the area. It has a long-established history with the Borough and is a vital resource for low-income people. Visitors from further afield, from as far as the Arab States are attracted to the market by its colourful cheerful spirit, by the diverse range of goods on sale at affordable prices and by the friendliness of the traders. Its character will be destroyed by the influx of market housing. Redeveloping the area at the scale intended is wrong. The character, trading and entrepreneurial nature of the market would be lost, only to be replaced by an impersonal corporate environment.”
Yours sincerely,
The Shepherd’s Bush Market Tenants’ Association
[1] Judgement relating to ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169 - https://www.bailii.org/ew/cases/EWCA/Civ/2016/169.html
[2] CPO Report to the Secretary of State for Communities and Local Government by Ava Wood Dip Arch MRTPI. An Inspector appointed by the Secretary of State for Communities and Local Government Date: 10 February 2014 - http://data.parliament.uk/DepositedPapers/Files/DEP2015-0230/223452-223453_Slaughter_-_Shepherds_Bush_Inspector_Report.pdf
[3] The Hammersmith & Fulham Council 2018 Local Plan https://www.lbhf.gov.uk/sites/default/files/section_attachments/local_plan_2018_web_version.pdf
[4] Judgement relating to ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169 - https://www.bailii.org/ew/cases/EWCA/Civ/2016/169.html
[5] CPO Report to the Secretary of State for Communities and Local Government by Ava Wood Dip Arch MRTPI. An Inspector appointed by the Secretary of State for Communities and Local Government Date: 10 February 2014 - http://data.parliament.uk/DepositedPapers/Files/DEP2015-0230/223452-223453_Slaughter_-_Shepherds_Bush_Inspector_Report.pdf
[6] ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169
https://www.bailii.org/ew/cases/EWCA/Civ/2016/169.html