Town and country planning – Planning permission – Consultation – Interested party applying for planning permission for mixed-use development – Respondent publicising application as required by statute – Claimants raising objections – Proposed development being substantially altered – Respondents granting planning permission without further consultation – Claimants applying for judicial review – Whether re-consultation of public on amended proposal required as matter of procedural fairness – Application granted
In 2015, the interested party applied to the respondent local authority for planning permission for a mixed-use development at Eagle Wharf on the south side of the Regents Canal in Hackney. The wharf consisted of a complex of two- to three-storey buildings, with a prominent chimney. It was listed as of local architectural and historic interest and lay within a canal conservation area. The site also lay within a priority employment area in the respondent’s core strategy which, together with the London plan, formed part of the development plan for the area. The application was subject to a number of amendments including some made in May 2106 but planning permission was granted in November 2016.
The first claimant, which was an existing tenant operating photographic/film studios on most of the site, applied for judicial review of the decision to grant permission. It complained that, unfairly and unreasonably, neither it nor the public were notified of, or consulted on, the amendments to the application in May 2016; that the respondents unfairly failed to adjourn consideration of the application by the planning committee to give it time to respond.
A second claim for judicial review was brought by the secretary of the Regents Network, a community organisation aiming to protect London’s waterways from inappropriate and negative development. His main complaint was also that, unfairly, he and other members of the public were not notified of, or consulted on, the amendments made to the application.
Held: The application was granted.
(1) Where there was a statutory duty of consultation, the question whether re-consultation was required if there was a change to the proposal on which there had been consultation depended on what fairness required. That would depend, among other things, on the purpose for which the requirement of consultation was imposed, the nature and extent of any changes, and their potential significance for those who might be consulted. The purpose of the relevant requirements for consultation in this case was not only to contribute to better decision-making when that application was considered, by ensuring that the decision-maker received all relevant information, but was also to ensure procedural fairness for those whose interests might be adversely affected by any grant of planning permission and to provide for public participation and involvement on decision-making on applications for such permission. In considering whether it was unfair not to re-consult, it was necessary to consider whether not doing so deprived those who were entitled to be consulted on the application of the opportunity to make any representations that, given the nature and extent of the changes proposed, they might have wanted to make on the application as amended. What fairness required in the circumstances fell to be determined by reference to the circumstances as they appeared to the authority at the relevant time and it was not sufficient to establish that a decision was unlawful merely to show it would have been better or fairer for there to have been re-consultation. The test was whether the process had been so unfair as to be unlawful: Bernard Wheatcroft v Secretary of State for the Environment [1981] 1 EGLR 139 applied. Keep Wythenshawe Special Ltd v NHS Central Manchester [2016] EWHC 17 and R (on the application of West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] PLSCS 137 considered.
(2) In the present case, the changes proposed were not insignificant. On any reasonable view, such changes alone made a substantial difference to the development for which the application for planning permission had initially been made. Given their nature and extent, not to have re-consulted on the amendments proposed deprived those who were entitled to be consulted of the opportunity to make any representations that they might have wanted to make on the application as amended. The claimants had been deprived of such an opportunity. A new basement plan was directly relevant to their interests and something that they might plainly have wanted to make representations about. What the claimants could have said, given the opportunity, might have made a difference to the decision of the planning committee. If only on that basis, they had been substantially prejudiced.
(3) Determining that representations, which had not been heard, would inevitably have made no difference was a matter about which great caution was required in any event. That caution was reinforced by the fact that matters of planning judgment were essentially ones for the democratically elected planning authority. It was not for the court generally speaking to anticipate what the outcome would be if a planning authority had had regard to representations that they had not considered. The procedure followed in relation to the amendments to the planning application deprived the claimants and others of a fair opportunity to make representations about them and that materially prejudiced the claimants. Accordingly, the procedure followed was so unfair as to be unlawful.
Richard Harwood QC (instructed by Harrison Grant) appeared for the first claimant; Jessica Elliot (instructed by Shakespeare Martineau) appeared for the second claimant; Nicholas Ostrowski (instructed by Hackney London Borough Council) appeared for the defendants; Robert Walton (instructed by Richard Marx & Co) appeared for the interested party.
Eileen O’Grady, barrister
