Watson, R (on the application of) v London Borough of Richmond Upon Thames

JUDGE MCKENNA: In this claim John Philip Watson, the claimant, seeks judicial review of the decision of the London Borough of Richmond Upon Thames to grant a planning permission, dated 30 March 2012, in favour of Solum Regeneration Limited, the interested party.

By way of background, on 19 December 2011, the defendant's planning committee had resolved to grant planning permission for the redevelopment of Twickenham Railway Station, including a new station concourse and three buildings, which range between seven and two stories in height, and including 115 residential units, A1, A2 and A3 floor space, and ancillary retail development. The resolution to grant planning permission was subject, among other things, to the completion of a section 106 legal agreement. On 29 March 2012, the section 106 agreement was completed. A copy of that agreement, for the sake of completeness, is at tab 8 in the bundle. Planning permission was granted on 30 March 2012. A copy of that permission is at tab 5. The application was accompanied by an environmental statement, following a screening opinion and a scoping report from the defendant which concluded that the development fell within the definition of a schedule 2 project, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which were then in force.

The claimant is a resident of 6 Cole Park Road, Twickenham, Middlesex. The claimant is a member of the Twickenham Residents Action Group, known as TRAG, an informal group of residents concerned about the construction of high rise development in Twickenham. TRAG was an objector to the interested party's planning application.

The Twickenham Advisory Panel, referred to as TAP, was set up by the leader of the defendant council and comprised a number of non-elected local individuals. Its terms of reference are set out at pages 266 and 267 in the bundle and include the following:

Under the heading "Functions of the Advisory Panel," the following appears:

Both grounds 1 and 2 are allegations that the defendant failed to take into account a material consideration. Ground 1 relates to an alleged failure to take into account a report produced by TAP, "The TAP Report", a copy of which is at pages 268 and following in the bundle, whilst ground 2 relates to an alleged failure to take into account, properly or at all, what has been referred to throughout as Plan B, produced by TRAG, a plan which was in fact professionally assembled by Metropolis Planning and, Odyssey Consulting Engineers.

The application leading to the grant of planning permission in this case is in fact the third in relation to Twickenham Railway Station in the last two years. The first application, under reference 10/1972/FUL was for enabling works comprising a podium deck or raft over the railway, on which the new station development and a significant element of residential development was to be sited. That application was withdrawn. A second application for a comprehensive redevelopment of the railway station, including the provision of 165 flats and retail development in three buildings, ranging in height between eight and three stories, was submitted in September 2010 under reference 10/3465/FUL. As I understand it, this application has yet to be determined and is still live.

The development with which this court is concerned is a revision to that second proposed scheme with the overall height of the scheme reduced. This revision followed detailed discussions with the defendant and other interested parties. This proposed development omitted any on site affordable housing and proposed a reduction of the height and massing of all three blocks when compared with the earlier (second) application.

Policy DM DC3 was adopted on 1 November 2011 in advance of the interested party's scheme being considered at committee on 19 December 2011. This policy prescribes building heights of up to four or five stories at the highest point and stepping down to two or three stories at the station. It provides that variation from these heights will only be acceptable where a detailed townscape study is undertaken and where there is significant local support for the public benefits of the overall scheme. The policy is to be found at tab 14 in the bundle, pages 426 and 427, the material sections of which are as follows:

In fact the development exceeded the four to five storey height specified in policy DM DC3, but a townscape assessment was provided as part of the application documentation.

The interested party argued that the amount of development proposed and the lack of affordable housing was necessary in order to make the overall scheme viable, and in particular to fund the provision of the new station facilities. This involved the construction of what has been referred to as a "podium deck" and which, as I understand it, has a marked effect on the scheme's viability, as well as its overall height. That deck supports the new station ticket hall in what is said to be the only acceptable location and enables the delivery of a substantial quantity of residential units. It will cost between £3 million and £4 million and, as a result, the argument runs that more residential units are required in order to offset the costs of the podium deck, so-called enabling development. The officer's report, tab five, pages 64 and following, summarises the proposal as follows, under the heading "Summary":

It recommended the granting of permission subject to the completion of a section 106 agreement and no adverse direction from the Greater London Authority.

To support the objections made by the claimant in advance of the 19 December Planning Committee meeting, a local architect and member of TRAG, Richard Mellor of Landmark Architecture, undertook to prepare an alternative proposal which was said:

Plan B was submitted on 1 December 2011 as part of TRAG's objection to the interested party's application. In its covering letter, TRAG made it clear that the scheme had been fully costed and that a detailed costs analysis had been prepared, which could have been, but in fact was not, made available to the defendant for independent assessment.

Under the heading "Alternative Development", page 162 in the bundle, the officer records the following:

The first addendum report provides under the heading "Late letters received", page 199:

TAP had been expressly briefed to organise a public event in respect of the proposed development which took place in July 2011 at which the interested party and the senior officers from the defendant fielded questions from the local residents. After further correspondence between TAP and the interested party, TAP wrote the TAP Report on the development, which is dated 7 December 2011. That report was sent to the leader of the council and officers concerned with planning policy, but, significantly, not those working directly on the planning application in question.

On 9 December, in a section entitled "Viability", that report identified a number of ways in which the height of the development could be reduced. That section concluded by asking whether it was reasonable for the interested party to attest that there was no Plan B when clearly it was possible to reduce the mass proposal significantly in sensitive areas, particularly for residents of St Mary's Terrace and Cole Park Lane. In a section entitled "Conclusions", the following appeared, at 281 and 282 in the bundle:

The section of the officer's report which deals with consultations merely states, "Twickenham Advisory Panel, no comments received at the time of the writing." The first addendum to the officer's report, dated 16 December 2011, provides, under the heading "Other Information":

The committee therefore did not have the TAP Report before them, nor was it advised on its contents, and, indeed, it was advised that the report was not material. The leader of the council has recently commented on the TAP Report in a press release, which is at 288 in the bundle, in these terms:

As I have already indicated, the defendant's planning committee accepted their officer's recommendation and resolved, subject to no adverse direction from the Greater London Authority, subject to conditions and informatives, and subject to the interested party entering into a section 106 agreement to grant planning permission. The minutes are at tab 7, pages 195 and 196, and include the following at page 196:

On 29 March 2012, the section 106 agreement was completed and the next day planning permission was granted. At tab 5, pages 60 to 63, are to be found the summary reasons for granting planning permission. They include the following passages, which are material:

I turn now to review the relevant legal principles. The duty of a local planning authority when deciding a planning application is to be determined in accordance with section 48(6) of the Planning and Compulsory Purchase Act 2004, and with section 70(2) of the Town and Country Planning Act 1990. Both sections refer to the concept of material considerations which may form part of the planning assessment.

Compliance with the plan is a question which must be answered by reference to the plan as a whole. As Mr Justice Sullivan, as he then was, put it in R v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) [2001] JPL 470, paragraphs 46 to 50:

Whether something is a material consideration in a particular planning decision will depend on the facts. The court's supervisory jurisdiction is limited to asking in respect of any reported materiality error, whether the excluded item or matter was, when seen in context, of such obvious importance that it would have stood a real chance of having made a difference to the outcome of the decision had it been taken into account, bearing in mind the wide margin of discretion which the courts allow to decision makers to determine the scope of their enquiry. Weight of course is entirely for the decision maker, absent perversity.

In Bolton Metropolitan Borough Council v Secretary of State, Lord Justice Glidewell, with whom the other members agreed, said as follows at 351:

When assessing whether a planning decision maker erred in law in relation to the existence of an alternative site on which an identified need might be met, or in relation to the competing merits of an alternative proposition for the application of the site, the courts will intervene only in exceptional circumstances given the degree of planning judgment involved and the primary focus of the decision maker's decision. This is even more so where a proposal is acceptable in planning terms.

I was referred to a number of authorities but the most relevant on this issue, it seems to me, is Mount Cook [2003] EWCA Civ 1346, a decision of the Court of Appeal, and particularly the judgment of Lord Justice Auld, at paragraph 30, under "Conclusions", when the following appears:

Ground 1: it is the claimant's case that the defendant's decision was unlawful, in that it failed to take into account a material consideration, namely the TAP Report, which, it is said, falls into the second category of cases referred to by Lord Justice Glidewell in the Bolton case and, therefore, it follows that it is for this court to decide whether it is a matter which the decision maker should have taken into account and, if the matter is either fundamental to the decision or there is a real possibility that consideration of the matter would have made a difference, then the court may quash the decision, and, says the claimant, the TAP Report was plainly material in that, at the very least, there was a real possibility that the consideration of the matter would have made a difference to the decision.

In support of that proposal, the claimant relied on the factors I have previously recorded, that TAP's terms of reference provided that the functions of the panel included the task of considering matters relating to development of Twickenham and site specific projects, that it was mandated to make recommendations to the leader of the council, it was briefed by the defendant's officers, who organised a public event, and was, therefore, it is said specifically engaged on this specific planning application. Moreover, the TAP Report, on its face, records that it was prepared for the leader of the council and council officers and set out the conclusions of the TAP members on the proposed development, and indeed expressly referred to the application and was delivered in time for the relevant committee meeting. It is also said in support of the claimant's submission that the officer's report specifically identified TAP as a consultee and it was referred to in the terms which I have already recorded in the addendum officer's report.

In further support of his contention, the claimant also prays in aid what was said by the leader of the Council in May 2012, to which I have previously referred, and to an email from Paul Chadwick, the defendant's Director of the Environment, which is at 284 in the bundle. In respect of that email, emphasis is placed on the view that consideration of TAP's views was said to be important and was part of the consultation process.

In all the circumstances, therefore, it is said that TAP's remit provides a reasonable platform for it to have produced a report and for that report to bear material planning consideration, since it goes to the heart of the defendant's justification for granting planning permission, which the claimant says was in conflict with the site specific policy, namely height in DM DC3 and, therefore, any suggestion that it is not relevant is unsustainable. The policy conflict generated a requirement to consider an alternative policy compliant form of development. If that be right, given the officer's advice was that it was not material, then, the claimant submits, that that amounts to a failure to have regard to a material consideration and, at the very least, there was a real possibility that consideration of the report would have led to a different decision.

A key plank in the claimant's argument, therefore, is an assertion that the planning application was in conflict with Policy DM DC3. In this regard, the claimant relies on the contents of the summary reasons for granting planning permission and the minutes of the meeting, the relevant sections of which I have recited and a fair reading of which, it is said, leads to the conclusion that there is a conflict. In particular, the claimant relies on the reference in minutes page 196 to the following sentence:

However, this argument overlooks the defendant's actual conclusion, stated expressly in the summary reasons, that the proposal accords overall with the development plan when considered as a whole, a conclusion reached after taking into account the three key material non-compliances referred to. Moreover, reasons are given as to why the proposals accord with DM DC3 by reference to the proviso to DM DC3 to which I have referred, at page 427 of the bundle. Both elements of the proviso were considered and found to be satisfied. A townscape appraisal had been submitted and justified a greater height, see the penultimate paragraph on page 60, and significant local community support was recorded, see page 61, third paragraph.

Applying the judgment of Mr Justice Sullivan, as he then was, in Milne, I regard the proposition that, even if, which I do not accept for the reasons set out above, that the proposed development was in breach of the height policy in DM DC3, it could not be said to be in accordance with the development plan as untenable. In those circumstances there was no necessity for the defendant, applying the line of authorities including Mount Cook to consider alternatives but, even here, as it seems to me, the claimant is in difficulty, having regard to the contents of the first full paragraph on page 63. Given that the design, including in particular height, was found to be acceptable and given that the defendant did consider whether the analysis of alternatives was warranted, and decided it was not, there is no real possibility that a report repeating what others had said, would have made a difference to the decision, and, as it seems to me, ground 1 therefore fails.

For the sake of completeness, I do not accept the submission that, whatever its substance, the TAP Report was required to be considered simply because it was submitted by TAP. The statutory code affords particular rights to particular organisations to consult it. TAP is not, by any stretch of the imagination, in that category. Its remit did not include making representations on specific planning applications and its request was not even sent to the planning officers actually dealing with this application, a fact which perhaps bears that point out.

In the circumstances, there is no need for me to go on to consider in any detail the second ground relied upon by the interested party but, having regard to the contents of Appendix 1 to the interested party's summary grounds, it does seem to me that each of the points taken by TAP was in fact considered and on that basis, too, ground 1 fails.

Ground 2: it is said that the defendant's decision was also unlawful in that it failed to take into account, properly or at all, Plan B, an alternative, which was said to be compliant with DM DC3's height requirement, viable and therefore a material consideration. I can deal with this ground very shortly. Given my conclusion that there was in fact no conflict with the development plan when considered as a whole, and given that the defendant concluded that the proposal would not cause harm to the townscape and the built environment, there was no requirement to consider alternatives such as Plan B applying the test adopted in Mount Cook. This ground too fails.

In any event it is clear from the officer's report that consideration was given to Plan B, with its details being summarised and the members being advised, as was the case, that no detailed cost information, although said to exist, had been submitted to verify its viability, and of course weight, absent perversity, is a matter for the decision maker.

For all these reasons, therefore, I would dismiss this claim.

JUDGE MCKENNA: Does anybody want to tell me what they think the order should be? Claim dismissed? Costs?

MR SMITH: My Lord, claim dismissed. I appear for the defendant. There is of course, as my Lord has indicated, a PCO.

JUDGE MCKENNA: Yes.

MR SMITH: Subject to that, and subject to the cap within it, I seek my costs.

JUDGE MCKENNA: Right. Ms Ring?

MS RING: My Lord, no. We accept costs. Subject to a PCO limit of £10,000, we accept an order that the claimant pay the defendant's costs.

JUDGE MCKENNA: So C pay D's costs of the claim?

MS RING: It is D and, for the avoidance of doubt, the IP's costs. The IP is not claiming costs, as I understand it, but just for the avoidance of doubt.

JUDGE MCKENNA: All right, yes. So the order you want is the claimant to pay the defendant and the interested party's costs of the claim. Such costs to be limited to £10,000?

MR SMITH: I would invite my Lord to assess them and limit it to £10,000. Assess them at £10,000, having regard to the limit.

JUDGE MCKENNA: You are happy with that, are you?

MS RING: I would simply say the wording should be "limited to £10,000."

JUDGE MCKENNA: Yes, limited to £10,000.

Anything else? No? Good. Thank you.

MS RING: My Lord, sorry, I do ask for permission to appeal.

JUDGE MCKENNA: Do you want to elaborate on why?

MS RING: Yes, my Lord. CPR 52 applies. I am applying on the basis that any application for permission to appeal would be granted if it has real prospects of success, or there is any other compelling reason. I say that, with respect obviously to your Lordship, your Lordship has erred in law in finding, amongst other things, that there was a compliance with the development plan.

JUDGE MCKENNA: Yes.

MS RING: That is one issue. I think actually quite a lot flows from that, in terms of then consideration of alternatives. I say that we do have real prospects of success. Your Lordship will recall that we were given permission for judicial review and that there was an arguable case. I would need to review the transcript to see what other issues --

JUDGE MCKENNA: It is very difficult on the hoof, particularly when you have not had a draft to formulate sensible grounds.

MS RING: Yes.

JUDGE MCKENNA: All right.

MS RING: Those are my submissions.

JUDGE MCKENNA: I would like to think I have got it right, and have the courage of my convictions. I do not believe that the proposed appeal has a realistic prospect of success. Obviously, you can renew your application elsewhere and they may take a different view, but permission refused.

MS RING: My Lord, could I ask for expedition of the transcript?

JUDGE MCKENNA: I see no reason why not. Yes.

MS RING: Thank you. Could I also ask for an order that the time for filing the appellant's notice be extended from 21 days to 28 days in the light of the holiday period.

JUDGE MCKENNA: Any objection?

MR WHALE: My Lord, yes.

JUDGE MCKENNA: I thought you might have because of the time constraints. Is that it?

MR WHALE: I didn't catch that, my Lord?

JUDGE MCKENNA: Is it that, because of the time constraints, you want to get on with development?

MR WHALE: Indeed, we do, my Lord, and, in fact, I was, in anticipation of this application, actually going to ask my Lord to abridge the time shortly for filing the appellant's notice -- 4 January, and possibly the 7th I had in mind, and certainly not extending the timescale. Nothing has really been put forward as to why it ought extended. I say it ought to be kept at 21, as is the normal, or indeed something slightly shaved off that, because, as you rightly say, my clients are keen to progress this matter.

JUDGE MCKENNA: Yes, as it seems to me, on the one hand, where expedition has been ordered and, on the other hand, where there is an application to extend time to appeal, there is a tension. I will not accede to your application to shorten the time but I will not accede to the application to extend it either. The normal period of 21 days will apply.

Yes, thank you all.