Page 3286 - Week 10 - Thursday, 19 October 2006
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variation No 158, the changes in that variation did not alter the situation in relation to clubs and drink establishments.
The new policies in variation 256 will prohibit clubs, drink establishments, service stations and indoor entertainment facilities locating in that part of the group centre adjoining the residential area to the east. While restaurants will continue to be permitted in section 22, the variation will require the development applications to be accompanied by noise management plans, as we have heard, which must comply with the noise standards in the Environment Protection Act 1997 and must be endorsed by the relevant regulating agency.
We heard from the minister earlier about trying to hold a balance in regard to this variation. We have also heard from Mr Seselja. The planning and environment committee’s report on this variation, at page 34, states:
Overseas planning and environmental cases suggest that in order for a human right to be found infringed, the interference has to be very substantial and not outweighed by other stakeholders’ rights.
In David Lough and Others v the Secretary of State and Bankside Developments Limited, for example, the United Kingdom Court of Appeal held that the right to home and privacy is not absolute, and a balance has to be struck between the interests of persons affected, and the interests of other property holders and the community as a whole. Not every loss of amenity involves a breach of the right, and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the right has been infringed.
In that case a residents’ group had challenged the planning permission granted for a 20-storey building having 28 dwellings, with shops and restaurants on the ground floor. Notwithstanding that the proposed development impacted on neighbours’ privacy, access to light, and caused overshadowing and overlooking, the court recognised that other landowners also have a right to enjoy their property rights. The court held that a reduction in amenity does not automatically breach the right to home and privacy.
The court was influenced by the advantages that would flow from the proposed development, including the replacement of an unsightly building with a building of substantial design quality, the provision of sustainable residential development, the efficient use of previously developed land, the provision of affordable housing, and the potential contribution to the regeneration of this area of London, and found that these outweighed the impact of residential amenity. These satisfied proportionality considerations without a separate review of that having to be undertaken.
The court also held that loss of value of land to landowners caused by neighbouring developments did not constitute a separate or independent basis for alleging a breach of the privacy human right.
Variation 256 was prepared as a response to concerns raised by the community regarding the potential for the intensity of some businesses operating in Jardine Street to adversely impact on the adjoining residential area. I recognise some of the residents in the gallery this morning. Kingston is a rapidly developing area, with the Kingston foreshore development adding to medium and high-density residential development closer to commercial centres and major transport corridors.
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