Town and country planning – Planning permission – Material consideration – Defendant local authority granting planning permission for roof level extension – Claimant residents’ association applying for judicial review – Whether defendant failing to take into account material consideration of structural feasibility of building to support proposed development – Application dismissed
The defendant local planning authority granted the second interested party planning permission for a roof level extension to a four-storey block of flats at Vanbrugh Court, Wincott Street, London SE11, to provide sixteen additional residential units and five external lifts. The claimant was an association of leaseholders and tenants of Vanbrugh Court who objected to the extension during the planning application process and applied for judicial review of that decision. The first interested party was the freehold owner of the site.
The residents expressed concern about the absence of a report from structural engineers as to the impacts of the additional storey on the existing building or any assessment of how construction was to be achieved whilst the residents still occupied the flats immediately below the building site. The proposed development was said not to be “buildable” in the absence of a credible structural engineering report. It was also said that the application should not be considered without a construction management plan.
In particular, there was no evidence assessing whether the existing building could support the extension or whether the residents would be required to vacate their flats during construction. The developers should have been required to produce a structural survey to address the issues.
The claimant argued, amongst other things, that: (i) the defendant had failed to take into account a material consideration, namely the structural feasibility of the building to support the proposed development; (ii) the defendant failed to make sufficient enquiries about structural feasibility; and (iii) the decision not to require a structural survey was Wednesbury unreasonable.
Held: The application was dismissed.
(1) Material planning considerations were not defined by statute. Their scope was broad. Any consideration relating to the use and development of land was capable of being a planning consideration. A consideration would be material if it was relevant to the question whether the application should be granted or refused, ie, if it was a factor which would tip the balance to some extent, one way or the other: Stringer v Minister of Housing and Local Government [1971] 1 All ER 65 and R (on the application of Kides) v South Cambridgeshire District Council [2004] 4 PLR 66 considered.
There were three categories of consideration: (i) those expressly or implicitly identified by the statute as considerations to which regard must be had; (ii) those identified by statute as considerations to which regard must not be had; and (iii) those to which the decision-maker might have regard if, in its judgment and discretion, it thought it right to do so. In relation to the third category of consideration, there was a margin of appreciation within which the decision-maker might decide just what considerations should play a part in his reasoning process; but there would be considerations that were so obviously material that they had to be taken into account. The test whether a consideration within that third category was so obviously material that it had to be taken into account was the Wednesbury irrationality test: R (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52; [2021] EGLR 5 applied.
(2) Where regulatory control regimes overlapped, a local planning authority was entitled to place reliance upon the effective operation of the other regulatory regimes in determining an application for planning permission. However, it could not simply ignore the issues in question. It had to assess them sufficiently to be able to satisfy itself that the other regulatory regime was capable of regulating the relevant issues. If it was not satisfied, consent had to be fused. The existence of the other regulatory regime was a material planning consideration, to be weighed in the balance: Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] EGCS92; [1995] Env LR 37 and R (Bailey) v Secretary of State for Business, Enterprise & Regulatory Reform [2008] EWHC 1257 (Admin) considered.
(3) A public body had a duty to carry out sufficient inquiry prior to making its decision, in particular by asking the right question and taking reasonable steps to acquaint itself with the relevant information to enable the question to be answered correctly. It was for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken (the Tameside duty). The court should only intervene if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. The court should establish what material was before the authority and only strike down a decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient: Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 applied.
(4) In the present case, the planning officers treated the question of whether residents might have to vacate their homes during construction as legally capable of being a material consideration. However, they decided to attach no weight to the matter, on the basis of information from the claimant that the scenario was highly unlikely. Further, in the circumstances, the defendant’s decision to rely on the response from the claimant about structural issues, and not to require a structural survey, was entirely reasonable. The building control regime was available to regulate structural issues and the provision of a structural survey was not so obviously material that the decision not to take one into account was irrational.
Further, in the circumstances, the Tameside duty of inquiry added nothing further to the analysis. The test was one of rationality, not of process. The information had to be of such importance, or centrality, that its absence rendered the decision irrational: R (on the application of Plantagenet Alliance) v Secretary of State for Justice [2014] EWHC 1662 considered.
In any event, the planning officers made specific inquiries of the claimant and were entitled to rely on the responses received, which accorded with their professional experience. The material relied on by the claimant to suggest otherwise did not provide the support sought for it.
James Neill (instructed by Leigh Day) appeared for the claimant; Matthew Dale-Harris (instructed by Lambeth Legal Services) appeared for the defendant; Kate Olley (instructed by Town Legal LLP) appeared for the first interested party.
Eileen O’Grady, barrister