5th December 2023
Without Prejudice
Hammersmith & Fulham Council’s Planning and Development Control Committee Meeting - Regarding Planning Application - Reference 2023/01093/FUL
We are taught from an early age the differences between right and wrong, and that there is a responsibility not only to us but to others. Yet, what may separate one person’s values from another, may not only be the knowing of what is right and wrong, but also having the conviction and dedication to act, and do ‘the right thing’.
Doing what is right and just may often be the harder option, however, it is the right path of good principles and values that may offer the greater reward, perhaps not immediately, but eventually.
This evening, on the 5th of December 2023, the Hammersmith & Fulham Council’s Planning and Development Control Committee meeting will be held at the Hammersmith & Fulham Council and a hearing may be conducted to consider whether the planning application reference 2023/01093/FUL, relating to Shepherd’s Bush Market and neighbouring lands, will be approved.
Almost a decade ago there was a Conservative alignment between the Hammersmith & Fulham Council (led by Councillor Stephen Greenhalgh), the Mayor of London (Mr Boris Johnson), and the Government (led by Prime Minister David Cameron). Perhaps this alignment was the catalyst that regretfully led to ‘Transport for London’ passing its stewardship of Shepherd’s Bush Market over to the developer known as ‘Orion Shepherd’s Bush Market Ltd.’ in 2014, who was the applicant of the planning application 2011/02930/OUT that related to Shepherd’s Bush market land and neighbouring areas.
Although the Hammersmith & Fulham Council approved the planning application 2011/02930/OUT, the application was later considered to be prejudicial to the Shepherd’s Bush Market businesses by the Secretary of State for Communities and Local Government by the Government Inspector - Ava Wood Dip Arch MRTPI and by the Lord Chief Justice of England And Wales, Lord Justice Longmore, and Lord Justice Lewison, regarding the Court of Appeal case - ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169.
- Details of the CPO Report to the Secretary of State for Communities and Local Government by the Government Inspector - Ava Wood Dip Arch MRTPI may be viewed via the link: http://data.parliament.uk/DepositedPapers/Files/DEP2015-0230/223452-223453_Slaughter_-_Shepherds_Bush_Inspector_Report.pdf
Under the leadership of Mr James Horada (the Former Chairman of the Shepherd’s Bush Market Tenants’ Association) the market traders fought for their livelihoods and were successful in the Court of Appeal due to the wisdom of the Lord Chief Justice of England And Wales, Lord Justice Longmore, and Lord Justice Lewison.
- The judgement relating to ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169 may be viewed via the link: https://www.bailii.org/ew/cases/EWCA/Civ/2016/169.html
It is important to understand that the judgement relating to ‘Horada & Ors v Secretary of State for Communities and Local Government & Ors’ [2016] EWCA Civ 169 by the Lord Chief Justice of England And Wales, Lord Justice Longmore, and Lord Justice Lewison, acknowledged, inter alia, that there is a duty and requirement for any future scheme relating to Shepherd’s Bush Market should incorporate robust safeguards to protect (i) the long term affordability of Shepherd’s Bush Market, (ii) the long term livelihoods of the multicultural and ethnically diverse market businesses, (iii) and to implement hardy stipulations and conditions ensure that the market tenants themselves may have the capacity to economically protect their businesses, yet despite this Court of Appeal judgement it appears that this latest Shepherd’s Bush Market scheme is not taking heed of the recommendations.
Earlier this year the partners of Orion Shepherd’s Bush Market Ltd. known as YC Shepherd’s Bush Market Ltd. submitted a planning application reference 2023/01093/FUL that relates to Shepherd’s Bush Market and neighbouring lands. It should be noted that planning application reference 2023/01093/FUL is disturbingly similar to the previous planning application 2011/02930/OUT that was submitted over a decade ago. Similarly, both applications may be considered to attempt to ‘land grab’ and encroach on the Shepherd’s Bush Market land in order to profiteer and build alternative structures other than market retail outlets.
Last month, during November 2023, MP Andy Slaughter published a comment regarding the developer Yoo Capital and their scheme - planning application reference 2023/01093/FUL, which seeks to build on Shepherd’s Bush Market land.
MP Andy Slaughter’s article reads “….It took a number of court cases, a public inquiry and fending off Tory politicians at local, and national level to save the Market. The latest scheme will do that but means substantial development elsewhere on the site and possibly in the long run changing the character of the Market. It’s a gamble either way, but the Market needs investment”.
MP Andy Slaughter is correct when he highlights the concern of the loss of “the character of the Market”. The Character of the Market may be considered to be primarily two things:
Firstly, the character of the Market may be considered to be the ethnically diverse and multicultural long-standing retail market businesses of Shepherd’s Bush Market that are much of the character of the market.
The character of the market has been preciously preserved by these businesses, yet the developer’s scheme now threatens the future affordability and the longevity of these market businesses because they wish to move away from the precedence that has already been set and not allow the tenants to maintain their current tenancy agreements.
The developer does not need to squeeze these small market businesses out of business and from the market to build their towering development on Shepherd’s Bush Market land, yet, If the developer can remove the current ‘Transport for London’ leases from the market businesses by placing the market tenants on weaker tenancy agreements, then the market businesses may be too vulnerable to protection themselves in the mid-term of the next lease, and subsequently be unable to withstand escalating rents and additional expenses that the developer may inflict.
Astonishingly, since Mr James Horada’s retirement as Chairman of the Shepherd’s Bush Market Tenants’ Association (SBMTA) and the resignation of the majority of the members who formed the SBMTA Committee, the current SBMTA has shown what may be considered a ‘lack of leadership’.
Instead of upholding the SBMTA’s constitution and protecting the interests of all of the SBMTA’s members the present SBMTA Committee appear to have abandoned all challenge against the developer and stopped fighting for the future affordability and longevity of the existing Shepherd’s Bush Market businesses.
There are alleged reports that the SBMTA Committee has approached both their members and non-members in an attempt to encourage the market tenants to entertain the developer’s proposals and ultimately retire from the market within the next few years when rent becomes unaffordable. This conduct from the current SBMTA, if true, may be considered very perplexing, to say the least.
The regeneration of the market was always supposed to be about bringing assistance and protection to the Shepherd’s Bush Market businesses. It was not supposed to be about gentrifying the area so that the long-standing market businesses would not be able to remain and would have to leave.
Under the stewardship of Orion Shepherds Bush Market Ltd. and their partners YC Shepherds Bush Market Ltd., too many market businesses have already been lost.
Evidence indicates that despite the Hammersmith & Fulham Council’s voiced claims of support for the long-standing businesses of Shepherd’s Bush Market, very few legal safeguards have been implemented to actually protect the market businesses.
If the Hammersmith & Fulham Council is willing to approve the planning application reference 2023/01093/FUL yet not implement the required stringent safeguards to protect the existing market traders, then something may have gone adrift and be truly wrong.
Secondly, the character of the Market may be considered to be the original structure of the Market Arches that are located on the west side of the market underneath the railway viaduct.
The Parsons Brinkerhoff report of August 2013 unequivocally established that the Shepherd’s Bush Market arches are in poor condition.
The CPO Report from the Secretary of State for Communities and Local Government by the Government Inspector - Ava Wood Dip Arch MRTPI pressed the importance of the 42+ Market Arches and their condition. The Government Inspector assessed that it would be prejudicial to the market businesses that leased the arch premises if the cost of repairs fell onto the market tenants instead of being borne by the developer/landlord.
The poor condition of the market arches is frequently mentioned in Ava Wood Dip Arch MRTPI Government Inspector’s CPO Report and some examples of this are listed below:
The CPO Report to the Secretary of State for Communities and Local Government may be viewed via the link: http://data.parliament.uk/DepositedPapers/Files/DEP2015- 0230/223452-223453_Slaughter_-_Shepherds_Bush_Inspector_Report.pdf
Page 51 – 7.1.7 of the Government Inspector’s CPO Report states:
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. Removing the canopy to the arches would be a retrograde step. It provides protection to shoppers from the weather.”
Page 69 – 12.6.19 of the Government Inspector’s CPO Report states:
12.6.19 “The Parsons Brinkerhoff report of August 2013 provides a detailed account of the poor state of the arch units in the market. It reports on water running down walls, significant vegetation growth, health and safety issues and the extensive restorative work required to bring the brickwork to “B” condition. The arches are historically important elements of the market, forming the backbone to the trading environment. Yet neither the Shepherds Bush Market Works (identified in the s106) nor the cost breakdown provided in evidence clarifies with any certainty that the arch units would be upgraded as part of the market refurbishment. The businesses housed in the arches are likely to see a fall in trade while the market works are being undertaken and may be unable to additionally fund the repair and upgrading of their premises at the same time. The retailers could face a precarious future without financial assistance for these necessary works. [7.1.7, 7.2.2, 10.2]”
Page 70 – 12.6.21 of the Government Inspector’s CPO Report states:
12.6.21 “The impasse with traders not wishing to engage due to lack of information and the developers unable to move forward without full knowledge of individual requirements is inhibiting progress. 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”.
Page 79 – 12.10.6 of the Report by the Government Inspector - Ava Wood Dip Arch MRTPI states: - 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. Equally, in the absence of measures to secure the affordability of replacement shop units, the commercial future of the Goldhawk Road shopkeepers cannot be assured. Without such certainties in place, there is some doubt in my mind whether the scheme granted permission (or any subsequent redevelopment proposal) could deliver on its promises of retaining if not all then the majority of traders and shopkeepers. They are vital to the market and to the vibrancy of the area. [7.1.7, 7.2.2, 5.4.9, 5.8.2, 10.2, 11.1.8]”
The Government Inspector’s concern regarding the condition of the Arches includes both the interior and exterior of the Arch structure. It is explained that there is an ongoing financial threat regarding the potential cost of repair that may unfairly fall onto the heads of the tenants if safeguards are not put into place. This concern is even more significant now than a few years ago. The time that has passed from the submission of the planning application 2011/02930/OUT to this YC Shepherd’s Bush Market Ltd. application 2023/01093/FUL has not bettered but worsened the condition of the Arches, and the Government Inspector’s concern may be considered to be more significant now than ever.
Allegedly Orion Shepherd’s Bush Market Ltd. had claimed to have spent in the region of £82,000.00 to waterproof merely one of the vacant arches in 2017. Despite these alleged efforts, the outcome resulted in disappointment and the arch continued to leak water compromising the intended retail area.
It is apparently claimed that YC Shepherd’s Bush Market Ltd.’s planning application reference 2023/01093/FUL may put £10,000 towards the repair of each arch, yet this should be viewed as a too insignificant amount as it in no way truly addresses the dilapidation and disrepair of the crumbling brickwork of these leaking arches.
In conclusion, MP Andy Slaughter is right that the character of Shepherd’s Bush Market may be compromised. Subsequently, if the loss of Shepherd’s Bush Market’s character relates to the lack of investment for the original market arches and the loss of the multicultural and ethnically diverse long-standing retail market businesses, then, how can this planning application be fair or right?