Town and country planning – Planning permission – Mixed use development – Defendant local planning authority granting planning permission to interested party for mixed use development – Claimant objector applying for judicial review – Whether defendants failing to breach local plan policy – Whether defendants’ acting unfairly contrary to principles of natural justice and requirement for fair consultation – Whether defendants erring in law – Application dismissed
The defendant local planning authority granted planning permission to the interested party for a residential-led mixed use development at 408-435, Chiswick High Road, Chiswick, West London. The claimant, who had objected to the proposal, applied for judicial review of that decision.
The claimant contended that: (i) the analysis of emerging policy in the officers’ report had been defective and significantly misleading, in particular, with reference to tall building policy CC3; (ii) the defendants had failed to evaluate whether there had been a true fall-back position because of prior approval for the exercise of permitted development rights in respect of the site; (iii) the defendants had failed to recognise the clear breach of policy EP2 of the local plan and to address the question of whether there had been overall conformity with the development plan on a lawful basis, contrary to section 38(6) of the Planning and Compulsory Purchase Act 2004; (iv) the defendants’ approach to late marketing evidence had been unfair, contrary to the principles of natural justice and the requirement for fair consultation. Passages in the statement of community involvement (SCI) created a legitimate expectation that objectors would have an opportunity to respond to further documents produced during the application process; and (v) the approach to compliance with section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 had been legally deficient.
Held: The application was dismissed.
(1) The court was not satisfied that, when the relevant paragraphs of the officers’ report were read as a whole, there had been any failure by the officers or the planning committee to take the tall buildings policy into account or that there had been any unlawful interpretation of the policy as contended for by the claimant.
(2) In circumstances where it had not been suggested that there was no possibility of the prior approval being implemented, the planning committee had been entitled, on the evidence before it, to treat the prior approval as a material consideration. The defendants’ officers and the committee had been entitled to conclude that the prior approval had been a material fall-back option and attach some weight to it: R v Secretary of State for the Environment, ex parte PF Ahern (London) Ltd [1997] PLSCS 171; [1998] Env LR 189, Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] EWCA Civ 233; [2009] PLSCS 94 and Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin); [2014] PLSCS 69 considered.
(3) The legal requirement was to determine the application as against the development plan a whole. Policy EP2 had to be considered alongside the other relevant policies of the defendants’ own local plan. It was clear from a fair reading of the officer’s report that it had been advising that the proposal had been in accordance with the development plan as a whole, given the acceptability of the proposed use and the totality of the policy compliance, despite a breach of the requirement in policy EP2 for active marketing over a two-year period. In granting the permission, the defendants had not failed to discharge their duty under section 38(6) of the 2004 Act: R (on the application of Hampton Bishop Parish Council) v Hertfordshire Council [2014] EWCA Civ 878; [2014] PLSCS 198 and Gill v Secretary of State for Communities and Local Government [2015] EWHC 2660 (Admin); [2015] PLSCS 268 considered.
(4) Whilst an SCI was capable of creating a legitimate expectation, one did not arise in the present case. There was no relevant promise in the defendants’ SCI about further consultation when further material was provided by an applicant. The SCI did not contain a promise to consult on documents received during the course of the application. The claimant’s contention that there had been some procedural unfairness in the determination of the planning application would be rejected. The planning committee had been perfectly entitled, on the evidence before it, to have taken the view that the marketing evidence had not raised any new points that had necessitated consultation and to have refused the application to adjourn the meeting: R (on the application of Majed) v Camden London Borough Council [2009] EWCA Civ 1029 and R (on the application of Kelly) v Hounslow London Borough Council [2010] EWHC 1256 (Admin) considered.
(5) The defendants had been well aware of the requirement under section 72 of the 1990 Act to have special regard to the desirability of preserving or enhancing the character or appearance of a conservation area. Section 72 did not amount to a duty to maximise enhancements of the conservation area. Accordingly, the claimant’s contention that the defendants had failed in their duties under s 72 in respect of the Turnham Green Conservation Area would be rejected: South Lakeland District Council v Secretary of State for the Environment [1992] 1 PLR 143 and Heatherington (UK) Ltd v Secretary of State for the Environment [1994] 2 PLR 9 considered.
Daniel Kolinsky QC and Luke Wilcox (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the claimant; Richard Harwood QC (instructed by HB Public Law) appeared for the defendants; James Strachan QC (instructed by Pinsent Masons LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read the transcript of Kverndal v Hounslow London Borough Council
