Town and country planning – Outline planning permission – Planning document – Defendant local authority adopting supplementary planning document (SPD) – Defendants granting outline planning permission for development – Court quashing SPD – Claimants applying for judicial review of decision to grant permission – Whether claimants failing to consider SPD and final National Planning Policy Framework (NPPF) – Whether shortcomings in environmental impact assessment (EIA) vitiating planning permission – Application dismissed
The defendant local authority adopted a supplementary planning document (SPD) for Shepherd’s Bush Market in West London. The defendants granted the interested party developer outline planning permission for the redevelopment of a site in Shepherd’s Bush, including the market, in a mix of uses. The claimants all owned and traded in shops next to the market, and their buildings would be demolished if the development went ahead. The court subsequently quashed the SPD, holding that the defendants should have produced an area action plan, following the statutory procedures for the adoption of a development plan document: [2012] EWHC 1411 (QB).
The claimants sought judicial review of the grant of outline planning permission on the grounds that, inter alia: (i) the defendants had erred in failing to take the SPD into account as a material consideration, when considering whether to grant planning permission; (ii) the defendants unlawfully failed to take into account the final version of the National Planning Policy Framework (NPPF), published seven weeks after the committee meeting and three days before the decision notice had been issued, as well as national planning policy current at the time when it had met; and (iii) shortcomings in the environmental impact assessment (EIA) undertaken for the proposed development vitiated the defendants’ decision.
Held: The application was dismissed.
(1) Planning decision-making was a process governed by statute and belonged to the decision-maker, not to the court. Section 38(6) of the Planning and Compulsory Purchase Act 2004 created a statutory presumption in favour of proposals that complied with the development plan. The decision was to be made in accordance with the plan unless material considerations indicated otherwise. There was no reason why, in some circumstances, a particular consideration, though material and thus potentially capable of affecting the decision, should not do so, which was the same as saying that it should be given no weigh: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
In the present case, it had not been irrational to give the SPD no weight while it had been the subject of challenge in the earlier action. The claim for judicial review had not transformed the SPD from a material consideration into an immaterial one. As a matter of planning judgment, the defendants could reasonably conclude that the interested party’s proposals had complied with the development plan, even if no weight had been given to the guidance in the SPD. It could not be said that the defendants had been misled into approving development in conflict with the development plan or that they ought to have seen their decision as a departure from the plan. The defendants’ conclusion, in the light of the planning officers’ advice, that the proposed development had accorded with the plan, even if the guidance in the SPD had not applied to it, and that granting planning permission for it had not involved any departure from the plan, had not gone beyond the bounds of a reasonable planning judgment.
(2) When a grant of planning permission was challenged on the ground that the local planning authority, having resolved to approve the development proposed, ought to reconsider that decision, the court would have to consider whether the new factor relied upon in the challenge would have been capable of affecting the outcome. What was required, therefore, was a change that might have had a material effect on the defendants’ deliberations had it occurred before the decision had been made. The crucial question for the court to consider was whether the new factor might have led the authority to reach a different decision: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66, R (on the application of Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 and R (on the application of Hinds) v Blackpool Borough Council [2012] EWCA Civ 466; [2012] PLSCS 44 applied.
On the facts of the present case, the NPPF, once published in its final form as government policy, did not become a new material consideration that the defendants had to address before issuing their decision notice, even if the final version had been in identical terms to the draft. Further, there had been no change in the national planning policy between the draft and final versions that might realistically have made a difference to the defendants’ decision. Accordingly, if the final version of the NPPF had been taken into account by the defendants before they had granted planning permission, it could not have made any difference to their decision.
(3) A local planning authority might not grant planning permission for EIA development unless it had first taken the environmental information into consideration, which included “the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representation duly made by any other person about the environmental effects of the development”. The question for the court was whether, in granting planning permission, the defendants had acted irrationally on the basis of the environmental information before it. This was not a case in which a complete EIA was impossible at the outline stage, or in which the assessment carried out at that stage was lacking. On the facts, the environmental statement had been properly prepared, satisfied all the requirements for an environmental statement and had no shortcomings that prevented the defendants from lawfully granting outline planning permission: R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2004] 2 P & CR 14; [2003] PLSCS 227, R (on the application of Blewett) v Derbyshire County Council [2003] PLSCS 252; [2004] Env LR 29, R (on the application of Barker) v Bromley London Borough Council [2006] UKHL 52; [2006] PLSCS 252; [2006] 50 EG 85 (CS), R (on the application of Boggis) v Natural England [2009] EWCA Civ 1061; [2009] PLSCS 283, R (on the application of Brown) v Carlisle City Council [2010] EWCA Civ 523; [2010] PLSCS 141 and R (on the application of Bowen-West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 considered.
Gregory Jones QC and Annabel Graham Paul (instructed by PDC Legal Ltd) appeared for the claimants; Russell Harris QC and Richard Turney (instructed by Hammersmith and Fulham London Borough Council) appeared for the defendants; Rupert Warren QC (instructed by Lawrence Graham LLP) appeared for the interested party.
Eileen O’Grady, barrister
