Wakil (t/a Orya Textiles) & Orsv London Borough of Hammersmith and Fulham

For the claimants Mr Gregory Jones Q.C. submitted that the SPD was clearly a material consideration in the Council’s decision on Orion’s proposals. It had to be taken into account, but was not. The effect of the advice given by the officers in paragraphs 1.19 and 1.20 of their report was that the committee should not take account of the SPD at all. In practice, this is what giving the SPD “no weight” actually meant. That was unlawful. The officers’ advice cannot be reconciled with the position taken by the Council when it promoted the core strategy, and in the proceedings before Wilkie J., when it acknowledged the importance of the SPD. The Council cannot have it both ways. Applying policy WCOA 3 to the proposals before it, it could not come to any view on their relationship to that policy, and therefore to the development plan as a whole, without having regard to the guidance in the SPD and asking itself whether the proposed development complied with that guidance. This was a necessary first step for the Council in discharging its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). If the guidance in the SPD is not applied it is impossible to conclude that the proposed development complies with the development plan, and the conclusion must then be that it does not. The Council both misinterpreted and misapplied policy WCOA 3, which requires that “any development should take place in accordance with the guidance in the [SPD]”. It could not lawfully give no weight to that provision of the development plan. It did not recognize that it was granting planning permission for proposals that were contrary to, and thus a departure from, the development plan. The officers’ report did not make this clear. If Orion’s application went back to the committee to be decided again, the SPD having now been quashed, it is far from clear that the committee would reach the same decision. So the court should not exercise its discretion to refuse the claimants relief.

For the Council Mr Russell Harris Q.C. emphasized that the SPD was not, and never has been, part of the development plan. It had been produced as a supplementary planning document for the UDP, which had been superseded by the core strategy by the time that Orion’s proposals came before the Council’s committee. The Council’s committee had regard to it as a material consideration. The weight to be given to it as a material consideration was a matter for the Council as decision-maker to judge. The officers’ advice in paragraphs 1.17 to 1.20 of their report shows that it did. The advice there was both logical and reasonable. It was possible that the SPD would be quashed in the challenge that had been brought to it – and, indeed, it later was. And the officers were entitled to say to the members, and the members were entitled to accept, that the development plan provided a sufficient basis on which to make their decision, without any weight being given to the SPD. In exercising its own planning judgment, the committee could properly conclude that the proposals complied with policy WCOA 3 and the other policies of the development plan to which the officers referred in the report, and, therefore, that a decision to approve the proposals would be in accordance with the plan. It cannot possibly be said that the members acted irrationally in giving no weight to the SPD. Once the conclusion was reached that the SPD should have no weight in the committee’s decision, it would have been an entirely futile exercise to test the proposals against the guidance it contains. The committee did not misinterpret or misapply policy WCOA 3, but applied it appropriately in the circumstances as they were at the time of its decision. Its approach met the requirements of sections 70(2) of the 1990 Act and section 38(6) of the 2004 Act.

For Orion Mr Rupert Warren Q.C. adopted the submissions made by Mr Harris. He pointed out that the claimants had not attacked the core strategy in any proceedings, and had never said that policy WCOA 3 was an unlawful policy. The false premise in the claimants’ argument was that policy WCOA 3 cannot operate unless a supplementary planning document exists and is applied to the proposals being considered. That is not so. It was open to the committee to conclude, lawfully, that Orion’s proposals complied with the relevant parts of the development plan, including policy WCOA 3, without giving any weight to the guidance in the SPD. Ironically enough, giving the SPD no weight was what the Council had been urged to do by the consultants acting for the shopkeepers in Goldhawk Road.

This ground engages some basic principles of planning law.

Planning decision-making is a process governed by statute. Section 70(2) of the 1990 Act requires the decision-maker to have regard to all material considerations, specifically including the development plan. Section 38(6) of the 2004 Act gives a statutory priority to the development plan. It creates a statutory presumption in favour of proposals that comply with the plan. The decision is to be made in accordance with the plan unless material considerations indicate otherwise.

There are therefore two questions for a local planning authority to consider when determining an application for planning permission. The first is whether the proposed development complies with the relevant provisions of the development plan, taken as a whole. The second is whether, in the light of all other material considerations, planning permission ought to be granted. If the development is found to comply with the plan, the effect of the statutory presumption in section 38(6) will be that permission ought to be granted unless the other considerations relevant to the decision – some perhaps telling in favour of the proposals and others against them – indicate a refusal. If the proposals are found to be in conflict with the plan, the effect of the presumption will be that permission is to be refused unless the other material considerations weigh sufficiently in favour of the development to justify a decision that does not accord with the plan.

Whether a proposed development complies with the relevant parts of the plan will sometimes be a simple question of fact – if, for instance, the plan allocates the site in question for a particular use and the proposals are for a different one. But often the local planning authority will have to apply its own judgment – for example, in coming to a conclusion on the need for a particular form of development if a relevant policy requires such need to be shown. Assessing the other material considerations and giving them the weight they should have in the decision – whether on the positive or negative side of the balance – will also call for the exercise of judgment.

In view of the way the claimants’ case on this ground has been argued it is worth going back to what was said by the House of Lords in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R.. 1447 about the process of making decisions on applications for planning permission in the era of the plan-led system. In his speech in that case – with which Lords Browne-Wilkinson, Mackay, Steyn and Hope all agreed – Lord Clyde said (at p.1458F-H) that the new statutory provisions giving priority to the development plan had left “the assessment of the facts and the weighing of the considerations in the hands of the decision-maker”, that it was for the decision-maker “to assess the relative weight to be given to all the material considerations”, and “to decide what weight is to be given to the development plan, recognising the priority to be given to it”. He endorsed the observation made by Glidewell L.J. in Loup v Secretary of State for the Environment (1995) 71 P. & C.R. 175 (at p.186) that “[what] section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations”. These matters, said Lord Clyde (at p.1459A), “are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues”. He went on to say (at p.1459E-F):

“… There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. [The decision-maker] will require to assess all of these and decide whether in the light of the whole plan the proposal does or does not accord with it. …”.

On the practicalities of the decision-maker’s task Lord Clyde said this (at p.1459H to p.1460B):

“Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. …”.

Lord Hope accepted (at p.1450A-C) that the purpose of the legislation had been to enhance the status of the development plan when the “weight to be attached” to the plan was judged “in the light of all material considerations”. But he said this was nevertheless still a matter of “judgment … to be exercised by the decision-taker”.

Planning judgment belongs to the decision-maker, not to the court. The court will not interfere with a decision-maker’s planning judgment unless an error of law has been made.This is as well settled as any other principle in the realm of land use planning. It is most clearly spelt out in authority at the highest level in Lord Hoffmann’s speech in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759 (at pp.780 and 781). As Lord Hoffmann said, the decision-maker is free to give every material consideration whatever weight seems right, which might actually be none. Twice in his speech Lord Hoffmann made this clear. In the first passage, which appears in his discussion of “Materiality and planning merits” (at p.780F-H), he said this:

“…Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”

The second passage (at p.784A-D) focuses specifically on the question “Little weight or no weight?”:

“… [Counsel for Tesco Stores Ltd.] submitted that a material consideration must be given some weight, even if it was very little. It was therefore wrong for the Secretary of State, if he did accept that the offer was a material consideration, to say that he would give it no weight at all. I think that a distinction between very little weight and no weight at all is a piece of scholasticism which would do the law no credit. If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy … precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.”

Lord Hoffmann’s analysis was, in effect, the same as Lord Keith’s (at p.764G-H):

“… If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense … ”.

and (at p.770B-C):

“… But the extent, if any, to which [a planning obligation] should affect the decision is a matter entirely within the discretion of the decision maker …”.

With those familiar statements of principle in mind, I am sure that the Council was entitled to give no weight to the SPD in making its decision on Orion’s proposals – provided of course it was not irrational to do so. The Council could lawfully do this even though the SPD is referred to in a relevant policy of the development plan.

Mr Jones at one stage seemed to suggest that Lord Hoffmann may have gone too far in Tesco Stores Ltd. v Secretary of State, or at least that his was a lone voice, when he said it was open to an authority or the Secretary of State to decide that a particular consideration was material but nevertheless to give it no weight at all. On both counts I disagree. As is plain from the speech of Lord Keith, with which Lord Hoffmann and Lords Ackner, Browne-Wilkinson and Lloydall agreed, the concept of weight being for the decision-maker to decide, subject to scrutiny by the court, is not a qualified concept. If weight is a matter for the decision-maker, it is not the court’s business to tell local planning authorities or the Secretary of State and his Inspectors that they must always give every material consideration at least some weight even if it is virtuallynone.

There is no reason why, in some circumstances, a particular consideration, though material and thus potentially capable of affecting the decision, should not do so – which is the same as saying that it should be given no weight. This proposition, so far as I am aware, has never been doubted since it was put in the way it was by Lord Hoffmann. And logically it must apply not only to “other material considerations”, such as statements of policy issued by the Government or guidance prepared by a local planning authority to supplement the development plan, but also to the policies and provisions of the plan itself.

For example, a particular provision of the plan may have become redundant because it has been overtaken by some conflicting statement of national planning policy, or because circumstances on the ground have changed, or for some other reason. The same thing might happen to guidance in a supplementary planning document. In a situation such as that the decision-maker not only could but undoubtedly should give no weight to the relevant policy or guidance – whichever it was. In the second of those two examples the fact that the supplementary planning document was referred to in a policy of the development plan, which said that proposals should accord with it, would not prevent its being given no weight. If the guidance it contained was no longer needed or useful this would be none the less so because the policy in the plan happened to refer to it. What is important here, in my view, is that the decision-maker may properly give no weight to anything that it believes should not influence the outcome of the application before it, rather than being constrained to give it some weight simply because it is a material consideration, or simply because it is a material consideration mentioned in the development plan.

Was it irrational in this case to give the SPD no weight while it was the subject of challenge in the claim for judicial review issued in January 2011? In my view it clearly was not.

Mr Jones did not submit that the Council had to hold off making its decision on Orion’s application until the claim had been heard. Such a submission would have been hopeless. The claim did not halt the business of development control. A decision on Orion’s application still had to be made. And it had to be made in the light of circumstances as they were at the time, which were not the same as they had been when the SPD was issued, or as they might later become when judgment was given on the claim.

The claim for judicial review had not transformed the SPD from a material consideration into an immaterial one. The Council’s officers did not make that mistake. They did not ignore the SPD. They acknowledged it in paragraphs 1.17 to 1.20 of their report. Their advice was not that it had ceased to be a material consideration, only that it should be given no weight. There can be no doubt, therefore, that the Council’s committee had regard to the SPD as a material consideration, as section 70(2) of the 1990 Act and section 38(6) of the 2004 Act required.

The fact that the validity of the SPD was being questioned in legal proceedings was, in my view, a circumstance that the Council’s committee was entitled to take into account. When it met to make its decision the possibility that the SPD would be quashed, and thus cease to be a material consideration in a development control decision, could not be discounted. A quashing order was one of the remedies sought in the claim. The claim had yet to be heard by the court. Its outcome was uncertain. Neither the officers nor the members knew it was going to succeed. But they knew that it might. They did not have to gauge how likely this was. In the proceedings the Council was defending the process by which it had adopted the SPD. It was obvious, however, that if the SPD were held to have been unlawfully adopted, and if its content had influenced the decision on Orion’s application, that decision might itself be vulnerable to challenge. It was for the officers, and in their turn the members, to consider whether in these circumstances the SPD should be given any weight in the decision that had to be made. Both officers and members clearly thought it should not. They decided not to rely on the guidance in the SPD when they determined the planning application. This was not, in my view, a course precluded by the Council’s stance in the judicial review proceedings. Far from being irrational, it was, I think, entirely realistic in the circumstances.

As has been pointed out, the claimants’ consultants were themselves urging the Council not to rely on the SPD in determining the application. I acknowledge that. But beyond the irony I see nothing in it. Whatever the claimants’ view at the time may have been, the committee had to reach its own view on the weight to be given to the SPD as a material consideration. And it did.

Did the Council either misconstrue policy WCOA 3 or misapply it in any way? I do not believe it did.

As the Supreme Court has made clear in Tesco v Dundee City Council [2012] UKSC 13, the interpretation of planning policy is matter for the court, construing the policy “objectively in accordance with the language used, read as always in its proper context” (see paragraph 18 of Lord Reed’s judgment). Lord Reed (in paragraph 19) contrasted statements of policy with the provisions of a statute or contract, adding that “development plans are full of broad statements of policy” and that “many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment”.

I do not think policy WCOA 3 is difficult to interpret. It does not simply defer to the SPD as the source of relevant guidance for development proposals in Shepherd’s Bush. It does not merely say that such proposals should accord with the guidance in the SPD. It describes the Council’s objectives for the site. Read together with its own supporting text in paragraphs 7.45 to 7.50, and with the other provisions in chapter 7 of the core strategy relating to the White City Opportunity Area, it puts the Council’s objectives for the redevelopment of Shepherd’s Bush in the context of the Council’s broader strategy for this part of the borough.It identifies the essential attributes of the development needed for the site: the regeneration of Shepherd’s Bush Market and adjacent land in a mix of uses comprising “small shops, market stalls, leisure uses, residential and possibly offices …”. Together with its supporting text, it makes very clear what type of development the Council wants to see in this part of the White City Opportunity Area (see paragraphs 24 and 25 above).

As Mr Harris and Mr Warren submitted, the references to the SPD in policy WCOA 3 are one element of it, but far from being the whole of it. If a project is “in accordance with” the guidance in the SPD it will, to that extent, accord with policy WCOA 3. This does not mean, however, that a scheme demonstrably capable of achieving the Council’s aims for Shepherd’s Bush Market and adjacent land, as laid out in the core strategy itself, and demonstrably consistent with other more general policies of the development plan, cannot reasonably be seen as complying with the plan, even if it has not also been shown to comply with guidance supplementary to policy WCOA 3. I reject Mr Jones’ submission that if the guidance in the SPD is not applied a project cannot reasonably be found to comply with policy WCOA 3 and with the development plan as a whole, and indeed that it must then be found to be in conflict with the plan.

In my view it is not necessary for a supplementary planning document to have come into existence –or to remain in existence –so that a scheme can be tested against its guidance, if a comprehensive development of Shepherd’s Bush Market and the adjacent land, matching the description given in the core strategy and compatible with all other relevant provisions in the development plan, is to earn the statutory presumption in favour of proposals that comply with the plan.Policy WCOA 3 does not prevent the decision-maker from judging that a project is consistent with the essential purpose of regenerating this site in the mix of uses identified, even if the guidance in a supplementary planning document is not applied. When the wider judgment comes to be made on the proposals’ relationship to the development plan as a whole, including the London Plan, the decision-maker may properly conclude that they comply with the plan if they are in line with its policies for the White City Opportunity Area, for housing, for design, for transport, and so forth.

The expressions “in accordance with the [SPD]” and “should take place in accordance with the guidance set out in the [SPD]” do not, I think, connote that in the absence of such guidance no proposals for the development of the site can claim the support of policy WCOA 3. To read policy WCOA 3 in that way would be to ignore the description it gives of the regeneration the Council wants to achieve and to treat the SPD as if it took precedence over the very provisions of the core strategy to which it is supposed to be subordinate. That in my opinion would be a nonsense. It is not what policy WCOA 3 says. And it is not what it means.

The point can be illustrated with a simple example. If, for instance, a scheme for the development of Shepherd’s Bush Market were submitted to the Council while a supplementary planning document was being prepared, would the proposals be premature or would they have to languish in a development plan policy vacuum? The answer to both questions in my view is plainly “No”, and I did not understand Mr Jones to argue the contrary. It would be absurd to suggest that the operation of policy WCOA 3, as a policy in a lawfully adopted development plan, should be held in suspense while a supplementary planning document was being produced. And the same would be so when guidance already published had been impugned in a claim for judicial review, or after it had been quashed by the court and a further process leading to the adoption of a replacement supplementary planning document was now under way.

In this case the Council prepared the SPD before it took the core strategy through its process to adoption. It had seen a need to add guidance to the relevant policies of the development plan at the local level, which at that time were in the UDP. In upholding the challenge that came before him, Wilkie J. concluded that the SPD ought itself to have been taken through the statutory processes for a development plan document, as an area action plan. But that has never been done. When the core strategy was adopted policy WCOA 3 did not convert the SPD into a development plan document, or confer on the guidance it contains a status equal to the provisions of the development plan. And the Council did not misread policy WCOA 3 as if it had.

Orion’s proposals were not automatically in conflict with policy WCOA 3 because the SPD was being given no weight. Whether the proposals could still be seen as consistent with policy WCOA 3, and with the other relevant parts of the development plan, was for the Council’s committee to judge. Whatever weight it chose to give to the SPD, its duty was to appraise the proposals on their planning merits, in the manner required by statute. If it had disregarded the parts of policy WCOA 3 that were in no way affected by the claimants’ challenge to the validity of the SPD it would have been failing to do what section 70(2) of the 1990 Act and section 38(6) of the 2004 Act required.

I do not accept Mr Jones’ submission that, irrespective of the claim for judicial review, the Council had first to apply the guidance in the SPD to Orion’s proposals when considering whether they accorded with policy WCOA 3, because otherwise it could not discern whether the development was “in accordance with the guidance” in the SPD and thus in conformity with the policy itself; that only once it had done this could it consider what weight should be given to the SPD in the light of the claim for judicial review; and that its failure to proceed in this way was fatal to the decision it made.

By the time Orion’s application came before the committee, the claim for judicial review had created the prospect of the SPD ceasing to exist, perhaps to be adopted again in due course, with or without revision, perhaps to be abandoned altogether. If, because of the uncertainties inherent in the claim, the prudent view was that the SPD should have no weight and should therefore play no part in the Council’s consideration of the proposed development, it would have been nothing but a waste of time and effort to apply its guidance regardless, knowing that the outcome of that exercise was going to be discounted as wholly irrelevant. That would have been perverse. Suppose the application was found to comply fully with the guidance in the SPD – which, incidentally, Mr Jones did not dispute. That conclusion could not have been given any weight in the committee’s decision because the SPD itself was being given no weight. If, on the other hand, the proposals were found to be incompatible with the guidance, that finding too would carry no weight, for precisely the same reason. The result would be no different in either scenario: the SPD would have made no difference to the outcome of the application because it carried no weight.

The right approach in the circumstances was to do exactly as the officers did: to consider in the first place what weight should be given to the SPD; having concluded it was going to have no weight, to consider whether the relevant policies of the development plan, including policy WCOA 3, could still be deployed; and having concluded that they could, to go on and apply them to the proposals, taking account of all other material considerations.

In my view it cannot be said that the Council committed any error of law in concluding that the proposals complied with the development plan, read fairly as a whole, as the officers advised the committee in their report (at paragraph 3.55).

The crucial question here therefore is whether, as matter of planning judgment, the Council could reasonably conclude, as the officers advised, that Orion’s proposals complied with the development plan even if no weight was given to the guidance in the SPD. The answer I would give to that question is “Yes”. I cannot see how it can be said that the Council’s committee misled itself, or was misled, into approving development in conflict with the development plan, or that it ought to have seen its decision as a departure from the plan. That suggestion is incorrect. For the committee to conclude, in the light of the officers’ advice, that Orion’s proposed development accorded with the plan even if the guidance in the SPD was not applied to it, and that granting planning permission for it did not involve any departure from the plan, was not to go beyond the bounds of a reasonable planning judgment.

Mr Jones did not contend, nor could I conclude, that the officers, when they assessed the merits of the proposed development in section 3 of their report, overlooked any policy of the development plan that was relevant to the proposals. Apart from his submission that the officers misled the members on the meaning and application of policy WCOA 3 because they advised them to give the SPD no weight, a submission that I have rejected, he did not contend, nor could I conclude, that the officers misunderstood or misapplied any relevant policy. He did not contend, nor could I conclude, that it was unreasonable to regard the proposals as consistent with the parts of policy WCOA 3 that do not refer to the SPD, with the text supporting policy WCOA 3, with policy WCOA, and with all other relevant policy and text in the core strategy and the London Plan. He did not contend, nor could I conclude, that the officers’ assessment of the merits of the proposals was marred by any mistake of fact, or that it was incomplete or unreasoned, let alone irrational.

In sections 3 and 4 of their report the officers expanded on their advice in paragraphs 1.17 to 1.20 that there was “a clear, rational and sufficient basis” on which to found a decision on the application for outline planning permission, and that the proposals were acceptable when judged in the light of relevant policy in the development plan, without the need to rely on the guidance in SPD. I cannot see anything unreasonable in what they said. In my opinion, their advice was careful and thorough. The short conclusions in paragraphs 3.55, 4.1 and 4.9 of the report, and the corresponding statements in the reasons given for the grant in the Council’s decision notice, which explain why it believed its decision was one taken in accordance with the development plan, are in my view unimpeachable. Other material considerations were not seen as militating against approval. And this too is a conclusion that cannot be faulted in law.

I therefore reject this ground of the claim.

On this ground Mr Jones submitted that, although the Council’s committee had taken account of the draft NPPF, as well as national planning policy current at the time when it met, it was never given the opportunity to consider Orion’s proposals in the light of the final NPPF, which was published some seven weeks after the committee meeting and three days before the decision notice was issued. When the final version of the NPPF was published it came into effect immediately, as government policy. It is a comprehensive statement of national planning policy. It brought about a wholesale change in national planning policy. It revoked PPS 1 and PPS 3, on which the officers had relied in their report. And simply because of its status as government policy it must necessarily have carried more weight than the draft. This was exactly the kind of situation contemplated by the Court of Appeal in R. (on the application of Erine Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370. The Council’s delegated officer ought to have taken the proposals back to committee, but did not. It was irrational not to. Thus the Council was in breach of its statutory duty to have regard to all material considerations. It seems that the delegated officer never even asked himself whether the application ought to be put in front of the committee again. Anyway, the court cannot conclude that the NPPF, had it been considered, could not have affected the outcome. There were clear differences between the draft and final versions, and between the NPPF and previous government policy: for example, in the definition of sustainable development, in the policy for tackling housing need, on the relevance of “cultural” considerations in planning decisions, and on the setting of local targets for the use of previously developed land.

Mr Harris and Mr Warren submitted that the relevant jurisprudence establishes that it is only necessary for an application for planning permission to be taken back to the committee that has decided to approve it when a new material consideration has arisen and it cannot be said that the committee would have come to the same conclusion in the light of it. This is a question for the court. In this case there was no new material consideration that made it necessary for the application to be taken back to committee. If Orion’s proposals had been considered again by the committee the same decision would inevitably have been reached. In their report the Council’s officers referred to the draft NPPF when considering the principle of the land uses proposed. There was no change in national planning policy that could have made a difference to the outcome in this case. None of the alleged differences between the draft and the final version of the NPPF and between the NPPF and previous government policy was material to the decision the committee had to make. Such changes as there were would not have tipped the planning balance against approval. The claimants have not shown how the final version of the NPPF could have made any difference to the decision.

The law relevant to this ground is clear. The jurisprudence is to be found in the decisions of the Court of Appeal in Kides, 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. When a grant of planning permission is challenged on the ground that the local planning authority, having resolved to approve the development proposed, ought to reconsider that decision, the court will have to consider whether the new factor relied upon in the challenge would have been capable of affecting the outcome. What is required therefore is not merely some obvious change in circumstances but a change that might have had a material effect on the authority’s deliberations had it occurred before the decision was made. The crucial question for the court to consider is whether the new factor might have led the authority to reach a different decision.

In Kides Jonathan Parker L.J. (with whom Laws and Aldous L.JJ. agreed) saw a “material consideration” as one “which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other” (see paragraph 121 of his judgment). It must be, he said (ibid.), “a factor which has some weight in the decision-making process, although plainly it may not be determinative”. But he went on to say (in paragraph 122) that “an authority’s duty to “have regard to” material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee”. The duty would be discharged “if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration”.

Jonathan Parker L.J. went on to say (in paragraph 125):

“ … [Where] a delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) [of the 1990 Act] requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty.”

and (in paragraph 126):

“In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a “material consideration‟ for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach(not might reach) the same decision.”

In Kides about five years had elapsed between the authority’s resolution to grant permission and the date on which the decision notice was issued. In the meantime changes had been made to government policy for the provision of affordable housing. The court found, on the facts, that the new matters on which the applicant had relied had been considered by the authority. Jonathan Parker L.J. said (in paragraph 129 of his judgment) that it was “entirely clear … that had the planning officer taken it upon himself to refer the 1995 application back to committee for reconsideration immediately before issuing the planning permission, the [authority’s] decision would have been the same”.

In Dry the Court of Appeal said that cases of this kind must be approached sensibly, with the particular facts in mind. In his judgment in that case, with which Maurice Kay and Patten L.JJ. agreed, Carnwath L.J., as he then was, said this (in paragraph 16):

“Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, “erring on the side of caution”. Furthermore, in that case there had been a gap of five years between the resolution and the issue of the permission. The guidance must be applied with common sense, and with regard to the facts of the particular case.”

In that case a screening opinion, in which the likelihood of flooding was considered, had been carried out on the understanding that the development site was in Flood Zone 1. In the light of this the authority had resolved to grant planning permission – in July 2009. By the time the decision notice was issued, in October 2009, the flood map had been re-drawn and the site was now shown in Flood Zone 2. The Environment Agency had confirmed that it did not object to the development. But the application had not been taken back to committee.The appellant relied on what Jonathan Parker L.J. had said in paragraph 126 of his judgment in Kides, contending that the authority’s officers could not have been satisfied that the same decision would have been reached if the committee had been made aware of the new flood map. On those facts Carnwath L.J. said this (in paragraph 20):

“When the revised Flood Map was produced in September [2009], the only possible question was whether it contained anything new which had not been taken into account by the Agency in its earlier consideration. Once the Agency had confirmed that it did not, it would have been pointless to refer the matter back to the committee. There was nothing new, and no reason for a rational planning committee to change its mind.”

In Hinds, the appellant argued that the local planning authority had unlawfully failed to take into account the Government’s intention to abolish regional planning strategies, which it had announced after the authority had resolved, in the light of the relevant regional strategy, to grant planning permission but before the decision notice was issued. The authority did not deny that it had never considered the change in national policy. In his judgment, with which Hughes and Patten L.JJ. agreed, Pitchford L.J. said (at paragraph 31) that the issue for the court was “whether the change of policy was material on the facts of this case”. Having referred to the Court of Appeal’s decisions in Kides and Dry, he went on to say (in paragraph 35) that it was “important … to appreciate that the court in [Dry] was not offering a route by which to avoid the requirements of s.70(2)”. He then said this (in paragraph 36):

“… It seems to me that we must approach the question of whether there was a change in circumstances and therefore the emergence of a fresh material consideration on the factual basis that the attempted revocation of national policy was invalid in law and therefore ineffective. Upon this basis, the committee, had it considered the matter, would have been faced with an emerging change in policy to remove from the development plan to be considered by the committee any reference to the RSS while preserving, in appropriate cases, the evidence base upon which the RSS requirements had been formulated. To use the words of Jonathan Parker [L.J.] at paragraph 121 of his judgment, Langstaff [J.] was required to consider whether the emerging change of policy was “a factor which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other”.

Pitchford L.J. then considered the facts on which the judge had concluded that the authority had not acted unlawfully, and (in paragraph 45 of his judgment) said this:

“I have seen nothing in the evidence … which demonstrates that the learned judge fell into error in reaching his conclusion that, objectively viewed, the emerging policy was in no way in conflict with the local requirements on which the planning committee had acted. On the contrary, it was the local assessment which had informed the RSS and not the other way around. The change of policy was for this reason not a material consideration because it could not have affected the merits of the decision.”

With the benefit of that jurisprudence, and in view of the facts in this case, I cannot see any force in the submissions made by Mr Jones. I think those made by Mr Harris and Mr Warren are clearly correct.

The essential chronology and context are simple, and not controversial (see paragraphs 37 to 47 above). Before the NPPF was published in its final form in March 2012 national planning policy for England was contained in a large number of policy statements and guidance notes, circulars, and other pronouncements of policy issued at different times and in various forms. PPS 1, “Delivering Sustainable Development”, was published by the Government in January 2005, and a supplement to it, “Planning and Climate Change”, in December 2007. PPS 3, “Housing”, was published in June 2011. The Council’s committee took the relevant national policy into account when it considered and resolved to approve Orion’s proposals on 8 February 2012. The draft NPPF was referred to in paragraph 3.52 of the officers’ report, when they were addressing the “Principle of Land Use” (see paragraphs 29 and 30 above). The NPPF was issued by the Government in final form on 27 March 2012, three days before the decision notice granting permission for Orion’s proposals was issued. It revoked many statements of national policy for planning, among them PPS 1 and PPS 3. Before issuing the decision notice the Council did not reconsider the planning application in the light of the final version of the NPPF. It seems that the Council’s officers did not think it was necessary to do so, or even to ask themselves whether it was.

There can be no doubt that when the application came before the committee both officers and members were well aware of the draft NPPF. Indeed, the officers were not only aware of it; they had also, plainly, thought about its implications for the proposals. They found it necessary to touch on its policies only when they were discussing whether, in principle, the proposed land uses were acceptable. Nowhere else in their report is it mentioned at all. The report provides a lengthy and, in my view, scrupulous assessment of the proposals. Having read it from beginning to end, I am not left with the impression that the draft NPPF was regarded by the officers as a central, still less a critical, consideration in their evaluation of the scheme or that their recommendation in any way depended upon it. And in the Council’s decision notice there is no mention of the NPPF, draft or final, either in the explanation it gave for its decision to grant planning permission, or in the reasons for the conditions it imposed. What one does see, however, is the influence the development plan had on the Council’s decision. Although the policies of the draft NPPF referred to in paragraph 3.52 of the committee report were seen as lending some additional support to the proposals, the Council’s decision to grant planning permission did not rest upon them. The officers were able to base their assessment, and the committee its decision, on an up to date development plan, which had specific policies for the White City Opportunity Area and Shepherd’s Bush Market and more general policies for land use, housing, design, and transport.

I cannot accept the submission that the NPPF, once published in its final form as government policy, became a new material consideration that the Council had to address before issuing its decision notice on Orion’s proposals; that this would have been so even if the final version had been in identical terms to the draft; and, therefore, that if the Council was to perform its duties under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act it had no choice but to reconsider, in the light of the NPPF, the decision its committee had made, and that its failure to do so invalidated the permission it granted.

That argument, in my view, is not cogent. I think it is based, in part, on a misreading of paragraph 212 of the NPPF. In stating there that the policies it contains are, from the day of its publication, “material considerations” to be taken into account both in development control decision-making and in the preparation of development plans, the NPPF is not saying that all of its policies will now be material to every application for planning permission. Nor is it saying that all of its policies must be seen as a material change of substance or emphasis in national planning policy, or a material change from the provisions of the draft NPPF. Whether there is a material change in any relevant aspect of policy, whether it is a change from the draft NPPF, and whether it is a change that might make a difference to a decision already taken on an application for planning permission, will always depend on the circumstances.

As the overarching statement of national policy for planning, introduced to replace a plethora of policy documents, the NPPF is, as one would expect, framed in broad terms. It does not prescribe the way in which any particular region or any particular authority’s area should be planned or developed. This is not to deny its importance. It is, after all, the authentic expression of the present administration’s planning policy for England. It tells authorities, developers and local communities what the Government wants the planning system in England to do. No doubt there will be cases in which an authority’s decision on an application for planning permission will be as it is because of something that is said in the NPPF. There may be cases too in which, in making its decision on an application, an authority neglects what the NPPF says about a particular matter, and the court is able to conclude that the decision might have been to refuse rather than approve had the relevant policy in the NPPF been taken into account. But this, in my view, is not such a case.

Apart from the argument put forward on ground 1 of the claim, which I have held to be wrong, the officers’ assessment of the merits of the proposals is not criticized, and I cannot see anything amiss with it.Mr Jones did not say that the advice the members were given on the draft NPPF was deficient or misleading, or that the officers’ views on any relevant strand of national planning policy current at the time of the committee’s decision – including PPS 1 and PPS 3 – were inaccurate or unreasonable. Nor did he suggest that the policies of the core strategy and the London Plan with which the proposals were found to comply were inconsistent either with the policies in the draft NPPF or with those in the final version.

So I think the main question for the court to consider on this ground is whether there was any change in national planning policy between the draft and final versions of the NPPF that might realistically have made a difference to the Council’s decision.

In my view the answer to that question is clearly “No”. In the circumstances of this case neither the publication of the policy in the final version of the NPPF nor the content of the policy itself was – in the words of Jonathan Parker L.J. in Kides – a factor “which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other”, or – as Carnwath L.J. put it in Dry – a consideration that could have caused “a rational planning committee to change its mind”, or – as Pitchford L.J. said in Hinds – a “change of policy … material on the facts of this case”.Nor – applying Pitchford L.J.’s criterion in Hinds – were any of the policies in the NPPF “in conflict with the local requirements on which the planning committee had acted” or such as “could … have affected the merits of the decision.”

In submitting that the Government altered its policies materially from those set out in the draft, Mr Jones highlighted four particular aspects of the NPPF. The first relates to the definition of sustainable development, the second to the Government’s policy for tackling housing need, the third to the relevance of “cultural” considerations in planning decision-making, and the fourth to the setting of local targets for the use of previously developed land.

In none of those four respects, nor in any other, can I detect a change from the draft to the final version of the NPPF that in my view compelled the Council to look again at the decision its committee had made in February 2012.

On the first point: the Government’s recasting of the definition of sustainable development was not, in my view, a change of any real significance for the Council’s decision. Mr Jones offered no good reason for thinking it was. I have quoted the relevant parts of both the draft and the final NPPF (in paragraphs 39 and 42 above). There are, it is true, some differences between the two documents in the language used to describe what sustainable development is and to underscore its importance in the national planning system. But for the claimants’ argument to succeed there would have had to be a change in government policy for sustainable development significant enough to affect the Council’s decision on Orion’s proposals. I can see none. Although the Government’s definition of sustainable development was refined after the consultation on the draft NPPF, the change was of no significance in this case. Mr Jones did not point toanything in the final NPPF that might have caused the officers, or the committee, to regard the proposed development as less sustainable than they had found it to be in the light of the draft NPPF and the national planning policy, including PPS 1, current when the decision to grant planning permission was made.

My conclusion on the second point – on housing need – is similar, and for similar reasons. I have quoted the relevant parts of both documents (in paragraphs 40 and 43 above). Again, I cannot see any change in this part of national policy from the draft to the final NPPF, or any shift from the policies in PPS 1 and PPS 3, reflected in the housing policies of the London Plan and the Council’s core strategy, that could realistically have made a difference to the committee’s decision on Orion’s proposals.The need to provide as much new housing as is sustainable has been a prominent part of national planning policy for some years. The NPPF does not weaken that requirement.It introduced no change of substance in the Government’s policy for the building of new homes that could have made any conceivable difference to the committee’s decision.Like the draft, and like PPS 3 before it, the final version of the NPPF emphasizes the need to increase housing supply.Paragraph 47 sets out what local planning authorities should do to “boost significantly the supply of housing…”, which includes maintaining a five-year supply of housing sites. Where these general principles bear on the merits of Orion’s proposals there is no material difference between the measures referred to and those advocated in the corresponding passages in the draft NPPF. In the draft, under the heading “Objectives” in the section on “Housing”, paragraph 107 said that the Government’s “key housing objective” is to “increase significantly the delivery of new housing”. What followed, in paragraphs 109 and 110 is in a similar terms to the final version. Both the draft – in paragraph 110 – and the final version – in paragraph 49 – enjoin authorities to apply the presumption in favour of sustainable development to proposals for housing development, which the Council’s committee demonstrably did in this case. Again, such differences as there are between the two documents cannot conceivably be seen as material in the context the court is dealing with here.

Mr Jones’ third point – on “cultural” considerations – is in my view no stronger. The objective expressed in paragraph 10 of the draft NPPF that the planning system be used to promote “strong, vibrant and healthy communities” appearedagain in paragraph 7 of the final version (see paragraphs 39 and 42 above). The reference in paragraph 7 to the “health, social and cultural” well-being of the community as one aspect of the “social” dimension of sustainable development was not a material change of substance in government policy that could have affected the conclusions the Council had reached on the merits of the proposals. Read in the context of the policies of the NPPF as a whole, this does not strike me as a change that could have made any difference to the committee’s decision. The committee clearly took account of the relevant cultural considerations. An “Equalities Impact Analysis”had been prepared for the Council. Its conclusions, summarized in the officers’ report, have not been questioned in these proceedings. In paragraphs 3.14 to 3.21 of their report the officers covered the consequences of the development for the traders in the Goldhawk Road shops, and for the ethnic groups to which they and many of their customers belong (see paragraph 28 above). Mr Jones did not suggest that any relevant aspect of “cultural well-being” was left out of account. The inclusion of the Goldhawk Road shops in the redevelopment of Shepherd’s Bush Market was required by policy WCOA 3. Schedule 16 to the section 106 agreement of 30 March 2012 will ensure that premises are available for the shopkeepers in the development (see paragraph 50 above).

The fourth point– on targets for the re-use of previously developed land –is also in my view unsound.Orion’s development will use urban land that has already been built upon. The fact that the NPPF removed the “national annual target” in paragraph 41 of PPS 3 that “at least 60 per cent of new housing should be provided on previously developed land” could not have caused the committee to come to a different decision.Paragraph 111 of the NPPF renewed the Government’s aim that policies and decisions should encourage the effective use of land by the use of previously developed sites, and supports the setting by local planning authorities of “a locally appropriate target for the use of brownfield land” (see paragraph 43 above). As Mr Harris told me, this was done for London in chapter 8 (“Implementation, Monitoring and Review”) of the London Plan, where Table 8.1 sets out “Key Performance Indicators”, the first of which is stated to be to “[maximise] the proportion of development taking place on previously developed land”, the “Target” being to “[maintain] at least 96 per cent of new residential development to be on previously developed land”. This has been the relevant target throughout. The NPPF had no effect upon it at all, except to support it in principle.

I am therefore unable to conclude that in this case the final version of the NPPF, if it had been taken into account by the Council before it granted planning permission, could have made any difference to the committee’s decision.

For those reasons this ground of the claim must be rejected.

Mr Jones submitted that the Council failed to consider the “indirect, cumulative and secondary effects” of the development, as it was required to do by the EIA regulations, in two particular respects: first, the effect of affordable housing being included if this turned out to be achievable, and secondly, the effects, in combination with the proposed development, of other major projects likely to affect the environment in this part of the Council’s area, including the Thames Tunnel, Crossrail, and the proposed redevelopment at Earl’s Court. Not only had the Council failed to require an assessment of those effects in the EIA; there was nothing to show that it had even considered whether they should be. An assessment of the effects of affordable housing being included in the development could and should have been carried out before the committee made its decision (see R. (on the application of Brown) v Carlisle City Council [2010] EWCA Civ 523). The review procedure in Schedule 5 to the section 106 agreement must have been seen both by the Council and by Orion as necessary and consistent with the requirements of the Community Infrastructure Levy (“CIL”) regulations. In chapter 13 of the environmental statement it was recognized that affordable housing might have different significant effects on the environment from market housing. There was at least a possibility of such effects occurring, and that is enough (see paragraphs 46 to 49 of the Advocate General’s Opinion in Sweetman v An Bord Pleanala (Case C-258/11)). And the Council knew that as much as 25% of the housing in the scheme might be affordable. The suggestion that the environmental effects of any affordable housing can be considered at the reserved matters stage is irreconcilable with the decision of the House of Lords in R. (on the application of Barker) v Bromley London Borough Council [2007] 1 A.C. 470. In a process involving more than a single consent the decision-maker must take account of the environmental effects of the project at the earliest possible stage. The effects of affordable housing being introduced into the development could and should have been assessed in Orion’s environmental statement. The potential for cumulative effects with the Thames Tunnel, Crossrail and the Earl’s Court development was obvious. These are all massive projects. Each is bound to have a significant effect on a wide area. The indirect and cumulative effects ought also to have been considered in the EIA.

Mr Harris submitted that a claim based on the alleged inadequacies of an environmental statement can only succeed if the decision-maker has acted irrationally (see R. (on the application Jones) v Mansfield District Council [2004] Env. L.R. 21. In this case the claimants cannot show that. All they can do is to rely on speculative allegations about potential environmental effects. There is no real possibility of any significant environmental effects coming about, either as a result of affordable housing being included or through the combination of the development and the Thames Tunnel, Crossrail or the proposals for Earl’s Court. Merely to suggest some illusory environmental effect, without any evidential basis for it, will not do. The proposals did not and do not include any affordable housing. Whilst the section 106 agreement allows for affordable housing to be introduced into the scheme if its viability improves, it is impossible to predict at this stage whether this will be possible. And in any event the claimants had not explained how the substitution of affordable housing for some of the market dwellings proposed would have made any difference to the assessment in the environmental statement. The other point is equally bad. The assessment of cumulative, secondary and indirect effects undertaken within the agreed scope of the EIA was sufficient, and the idea that there might be such effects associated with the Thames Tunnel, Crossrail and the redevelopment in Earl’s Court is unreal.

Mr Warren submitted that it would have been bizarre if the Council had sought to insist on the environmental statement including an assessment of the effects of affordable housing. The outcome of the further financial viability appraisal was and remains wholly uncertain. When the outline application was before the Council it would have been impossible to carry out any meaningful assessment of the environmental effects of the development with some affordable housing included in it. The earliest stage at which that could be done is when reserved matters are submitted and the provisions of the Schedule 5 of the section 106 agreement have been complied with. To insist on an assessment of affordable housing before that stage has been reached would have been irrational. It would have been to seek more information than was “reasonably required” under the EIA regulations. The same applies to the major schemes on which Mr Jones now relied.

This ground raises two discrete points. Both concern alleged omissions from the interested party’s environmental statement that are said to render the grant of planning permission unlawful.

A local planning authority may not grant planning permission for EIA development unless it has first taken the environmental information into consideration (regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA regulations”)). Regulation 2(1) of the EIA regulations defines the “environmental information” as “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”. An “environmental statement” is defined in regulation 2(1) as meaning:

“… a statement –

(a)

that includes such of the information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b)

that includes at least the information referred to in Part 2 of Schedule 4”.

Part 1 of Schedule 4 to the EIA regulations refers (in paragraph 4) to “[a] description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development …”. The information referred to in Part 2 is:

“1.

A description of the development comprising information on the site, design and size of the development.

2.

A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3.

The data required to identify and assess the main effects which the development is likely to have on the environment,

4.

An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects.

5.

A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.”

The definition of an “environmental statement” is important in this case, as it will be in any case where a similar point is taken about the adequacy of an EIA and the integrity of the decision-making process to which it belongs.The word “reasonably” occurs twice in the definition. It qualifies the requirement for the information referred to in Part 1 of Schedule 4, and it also qualifies the applicant’s responsibility for compiling that information.

The relevant case law shows that the question for the court is whether, in granting planning permission, the authority acted irrationally on the basis of the environmental information before it (see, for example, the judgment of Dyson L.J., as he then was, in R. (on the application of Jones) v Mansfield District Council, at paragraphs 14 to 18, and 52; and the judgment of Laws L.J. in R. (on the application of Bowen-West v Secretary of State for Communities and Local Government [2012] J.P.L. 1128, at paragraph 28).

In R. (on the application of Blewett) v Derbyshire County Council [2004] Env. L.R. 29 (in paragraph 41 of his judgment) Sullivan J., as he then was, deprecated an “unduly legalistic approach” to the requirements of Schedule 4, adding (in paragraph 42) that “[it] would be of no advantage to anyone concerned with the development process – applicants, objectors or local authorities – if environmental statements were drafted on a purely “defensive basis”, mentioning every possible scrap of environmental information just in case someone might consider is significant at a later stage”. In paragraph 68 of his judgment in that case Sullivan J. referred to “a tendency on the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements, as revealed by the consultation process prescribed by the Regulations, and to contend that because the document did not contain all the information required by [Schedule] 4 it was therefore not an environmental statement and the local planning authority had no power to grant planning permission”. He said that “[unless] it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived”.

Under the parallel provisions for assessment in the habitats directive and the habitats regulations, when a claimant asserts that an authority ought to have considered a particular risk and asked itself whether that risk could be “excluded on the basis of objective information”, it is up to him to “produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered” (as Sullivan L.J. put it in R. (on the application of Boggis) v Natural England [2010] PTSR 725, at paragraph 37 of his judgment). I do not believe that the requirement for such evidence is overridden by the observation made by the Advocate General in paragraph 47 of her Opinion in Sweetman – that “the possibility of there being a significant effect on the site will generate the need for an appropriate assessment for the purposes of Article 6(3) [of the habitats directive]” – or at odds with the precautionary principle affirmed by the court in paragraph 48 of its judgment in that case.

In this case I cannot see how the Council can be criticized for having accepted Orion’s environmental statement as a competent assessment of the likely significant environmental effects of the development, which was sufficient to satisfy the requirements of the EIA regulations, including the relevant requirements in Schedule 4. In my opinion the environmental statement did at least as much as was required to comply fully with the EIA regulations. It did not omit any of the information it was required to contain. The onus lies on the claimants to show that, when tested against the requirements of the EIA regulations, it did not amount to an environmental statement within the definition in regulation 2(1). I do not think they have come anywhere near to establishing that. They have not, in my view, shown any real possibility that either of the two matters on which they rely required assessment under the EIA regulations before the Council could lawfully grant outline planning permission.

I reject the submission that the environmental statement ought to have grappled with the effects on the environment of affordable housing, on the assumption that some affordable homes might in the end be provided in the development.

The environmental statement noted the absence of affordable housing in the scheme, at paragraphs 13.2.9 and Table 13.3 (see paragraph 12 above). What it said was correct. Orion’s application for planning permission did not include any proposal for affordable housing. This was because the development was going to have to meet the cost of other planning benefits and, as the Council accepted, its viability was doubtful unless all of the proposed housing could be made available for private sale or rent. Nevertheless, the section 106 agreement allowed for the provision of some affordable housing if the viability of the scheme improved. It did this by the review mechanism in Schedule 5 (see paragraph 49 above).

When the application was before the committee, and when the Council duly granted outline planning permission, Orion’s environmental statement could not reasonably have been expected to include an assessment of the likely significant effects on the environment of some affordable housing being introduced into the development, for it was neither known nor knowable whether there was going to be any. It was unclear then, and still is, whether there will be an “Affordable Housing Budget”. This will remain uncertain until a further viability appraisal is presented to the Council. That will have been done, I was told, by the time the reserved matters are submitted for approval. Only then will it be possible to work out whether any affordable housing can be provided without jeopardizing the viability of the scheme. Only then, therefore, would it be possible to undertake a meaningful assessment of the environmental effects, if any, of this being done. Assuming that the viability appraisal does justify the provision of some affordable housing, nobody can estimate yet how many affordable dwellings, and of what size and tenure, there might be. All of this, for the moment, can be nothing more than conjecture.

What is clear, however, is that if any affordable housing is provided it will not increase the total number of dwellings, which is already set at a maximum of 212 in the description of the development in the planning permission. It will only reduce the number of homes available for private sale or rent on the open market. How the substitution of some affordable housing for the same or a similar amount of market housing might affect the assessment of likely significant effects on the environment has not been explained. I struggle to see how it could. The prospect of there being some new or different effect on the environment seems remote, and the possibility that any part of the assessment would have to be revised is, I think, almost inconceivable. It follows in my view that the Council did not have to enlarge the scope of the EIA to bring in the environmental effects of affordable housing at the outset, nor, once Orion’s proposals were before it, did it have to ask for further information on this matter to add to the assessment in the environmental statement before making its decision. The EIA regulations did not require the Council to do either of those things. It was not only reasonable but, I believe, clearly right to proceed as it did.

I would go further. I think it would have been unreasonable to ask for an assessment of the proposed development presupposing that some affordable housing might eventually come forward. In this case the proposals were assessed as they were, not as they might have been if the economic realities had been different. I cannot see how the Council could reasonably have insisted on having an environmental statement that speculated about the effects on the environment of some indeterminate amount of affordable housing being included in the scheme. Not only would this have been more information than was “reasonably required to assess the environmental effects of the development”; it was also more information than Orion could “reasonably be required to compile” in the light of its “current knowledge”. To require such information in an environmental statement would have been to exceed the ambit of EIA. It would have been to stray from the proper assessment of effects on the environment that are both significant and likely, which is what the EIA directive and the EIA regulations require.

In my view, therefore, the Council and Orion do not need to rely on what was said in Barker about processes involving more than a single consent– though they could if they had to. This is 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. In his speech in Barker, with which Lords Bingham, Carswell and Brown and Lady Hale all agreed, Lord Hope said (in paragraph 5) that the environmental effects of a development “can usually be assessed sufficiently at the outline stage”. But one could conceive of cases where the likely effects of the development on the environment would “only become apparent when consideration is being given to the reserved matters or where further consideration is necessary due to a material change in circumstances”. In that case, as in this, an outline planning permission had been granted and the development could not lawfully be begun until the reserved matters had been approved, because this was a requirement of one of the conditions imposed. Lord Hope said that “[any] grant of planning permission which contains a condition in these terms must be regarded as a multi-stage development consent for the purposes of the [EIA] Directive” (paragraph 21). But he went on to say (in paragraph 22) that it “does not follow … that where planning consent for a development takes this form, consideration must be given to the need for an EIA at each stage in the multi-consent process”, and then this (ibid.):

“The first recital in the EIA Directive indicates that the competent authority must take account of the effects on the environment of the project in question at the earliest possible stage in all the technical planning and decision-making processes: see also [R. (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02)] [2004] ECR I-723, para 51. In the case of a Schedule 2 development the competent authority must decide at the outset whether an EIA is needed because the development is likely to have significant effects on the environment. … The need for an EIA to be carried out at the reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier stage.”

I see this as a normal case, in which, as Lord Hope put it (in paragraph 23), it is “possible for the competent authority to treat the EIA at the outline stage as sufficient for the purposes of granting a multi-stage consent for the development”. The Council was, I believe, entitled to do that.

However, as Lord Hope said in paragraph 24 of his speech in Barker:

“As the European court [2006] QB 764 said in para 48 of its judgment, … the competent authority may be obliged in some circumstances to carry out an EIA even after outline planning permission has been granted. This is because it is not possible to eliminate entirely the possibility that it will not become apparent until a later stage in the multi-stage consent process that the project is likely to have significant effects on the environment. In that event account will have [to] be taken of all the aspects of the project which have not yet been assessed or which have been identified for the first time as requiring an assessment. …”.

This is not a case in which the need for EIA was missed at the outline stage – the first of the two examples given by Lord Hope – or of a detailed description of outline proposals emerging only through a submission of reserved matters – his second example. But it might just be a case in which at the reserved matters stage it becomes clear that, as Lord Hope’s put it (ibid.) “the development may have significant effects on the environment that were not anticipated earlier.” If this did happen it would not then be too late for the Council to ask for what Lord Hope described in paragraph 5 of his speech in Barker as “further consideration … necessary due to a material change in circumstances”. This would be consistent with the principlethat account must be taken of the effects of a development on the environment at the “earliest possible stage”. I accept the submissions made by Mr Harris and Mr Warren to this effect.

The claimants’ argument gains nothing from the suggestion that, under the CIL regime – in particular, regulation 122 of the CIL regulations – the inclusion of the review procedure in Schedule 5 to the section 106 agreement must have been seen both by the Council and by Orion as necessary, in the sense that planning permission could not have been granted without it. There is no logical link between that proposition and the notion of including affordable housing in the EIA. The need for the review procedure does not of itself make it more likely that affordable housing can viably be provided in the development, nor does it make the result of the review any easier to predict.

I come then to Mr Jones’ second argument, on indirect, secondary and cumulative effects. I see nothing in this point either.

The environmental statement did not leave out indirect, secondary and cumulative effects. These were dealt with explicitly, wherever it was appropriate to do so. The approach taken by the authors of the environmental statement to identifying effects of this kind seems to me to have been cautious– and that is not a criticism. One can see this, for example, in sub-section 2.4 of the environmental statement, where the scope of the assessment was outlined (see paragraph 13 above). The assessment took into account some development not yet approved. The selection of the six sites whose potential cumulative effects were assessed was agreed with the Council before the application for planning permission was made. Each chapter of the environmental statement considered whether “cumulative impacts on receptors” ought to be assessed, and, if so, which were the relevant schemes. For example, the assessment in chapter 15, on transport, took in both the cumulative traffic impacts of developments within the White City Opportunity Area but also smaller developments in the local area (see paragraphs 15 to 18 above).

Mr Jones did not argue that the assessment of the indirect, secondary and cumulative effects identified in the environmental statement was flawed. What he submitted was that the assessment was incomplete because it did not include other schemes. The three he relied on were the Thames Tunnel, Crossrail and the large-scale development planned for the Earl’s Court area. But the argument is lacking in substance. For the court to be persuaded that an EIA has fallen short of the requirement to assess indirect, secondary and cumulative effects it must have something more than mere assertion about the schemes said to have been ignored, even if they are major projects of infrastructure or urban regeneration in a densely developed part of London. It must have more than an objector’s fear that there might be effects on the environment attributable in part to the proposals in hand, which have not been included in the developer’s environmental statement. In this case it has not been demonstrated that there are, in fact, any indirect, secondary or cumulative effects that ought to have been assessed but were not.

When Orion’s application for planning permission was submitted to the Council neither the claimants nor – so far as I know – anybody else suggested that the EIA ought to include the indirect, secondary and cumulative effects now contended for by the claimants. Nor was it suggested, after the environmental statement had been prepared, that the Council should seek further information on those effects. This, I think, is telling.

But in any event I do not accept Mr Jones’ submission that the other three projects to which he referred to should have been assessed together with Orion’s proposals. This was, in my view, well outside the range of “such information … as [was] reasonably required” to be included in the environmental statement in this case. I think the approach adopted was impeccable. The assessment did not fail to cover the effects referred to in Schedule 4 to the EIA regulations, including the “indirect, secondary [and] cumulative” effects of the development. The Council did not ask for any further assessment. It did not see need to investigate the effects of the development together with others, large or small, whose existence had not already been assumed in Orion’s environmental statement. It accepted that the environmental statement fulfilled the requirement in the EIA regulations for an assessment of the likely significant effects of the development on the environment. And I think it was right to do so.

In my view, therefore, Mr Jones’ second point is untenable.

Mr Jones argued that this case is analogous to Brown v Carlisle City Council. I disagree. The facts of that case were very different.An application was made for planning permission for works at an airport, including the repair of a runway, the use of an existing building as a passenger terminal and the construction of a freight distribution centre. The EIA for a previous, more ambitious scheme had included an assessment of the effects of the whole development, but the EIA for this one assessed the effects of the freight distribution centre alone.It was argued before the Court of Appeal that the freight distribution centre was part of a wider project, which included the airport works, or, in any event, that the environmental statement ought to have covered the effect of those works because they were part of the cumulative effects of the development for which permission was sought. The authority and the developer argued that it had been reasonable not to treat the airport works as part of the cumulative effects because there was no functional link between them and the freight distribution centre. Sullivan L.J. said (in paragraph 21 of his judgment, with which Jacob L.J. and Sir Mark Waller agreed) that the question of what the cumulative effects of a development actually are “will be a question of fact in each case”. On the facts of that case the court rejected the argument that the airport works could properly be excluded from the assessment because they were “inchoate” (paragraph 28), and concluded that the paucity of detail about the airport works was not such as to prevent an assessment of their likely effects (paragraph 29).

In this case, by contrast, I see no basis upon which the Council could reasonably have expected the assessment in the EIA to embrace a notional element of affordable housing or to anticipate any further cumulative and indirect environmental effects than were identified in the environmental statement. On the facts before me I have found no breach of any relevant provision of the EIA Directive and the EIA regulations. The environmental statement was properly prepared. It satisfied all of the requirements for an environmental statement. And there were no shortcomings in it that prevented the Council from lawfully granting outline planning permission, when it did, for Orion’s development.

In my view, therefore, this ground cannot succeed.

Mr Harris submitted that the claim had not been brought promptly. It was issued only four days before the end of the three month period. Since the planning permission was granted, both the Council and Orion have done a great deal of work on the project, including the preparation of a compulsory purchase order. The claimants knew that this work was going to be done. Although they had leading counsel’s advice even before the committee resolved to approve the proposals, they still took almost three months to embark on proceedings after the decision notice was issued. The inclusion of an argument based on European law, in ground 4 of the claim, was an attempt to avoid the full rigour of the rule that claims for judicial review must be made without undue delay. But that ground was patently misconceived.

Mr Warren added that, although the claimants had threatened a claim early in May 2012, they did not need to wait until the outcome of the challenge to the SPD to get on with these proceedings. Their disagreement with the Council over disclosure was no excuse. The reality here is that the claim was unduly delayed.

Mr Jones resisted those submissions. The claim was issued, as it had to be, within three months of the decision it challenged. Neither the Council nor Orion had shown they had suffered any prejudice by its being launched when it was. Anyway, the development cannot be begun until reserved matters have been approved. It was reasonable for the claimants, before deciding whether to go ahead with these proceedings, to await the outcome of the challenge to the SPD; once the SPD had been quashed, to see whether the Council was going to appeal; and to seek disclosure. And the court ought to bear in mind the gravity of this case for them. There is no real issue of delay for the court to consider (see the judgment of Sir Richard Buxton in R. (on the application of Berky) v Newport City Council [2012] EWCA Civ 378). In any case of this kind, where proposals have been subject to EIA, a person challenging the grant of development consent is entitled to access to the court, under article 11 of the EIA directive.

I see some force in the submissions made by Mr Harris and Mr Warren. There is no doubt, in my view, that the claim could have been brought sooner than it was. There was no need for the claimants to wait until the outcome of the proceedings before Wilkie J. Nor was the disagreement over disclosure a sufficient reason for any delay. On the other hand, the claimants had alerted the Council and Orion to their intention to challenge any grant of planning permission. They did this even before the Council’s decision notice was issued. The claim was brought within three months of the grant of outline planning permission, though only just. I am not convinced that any real prejudice, either to good administration or to Orion’s commercial interests, resulted from it being issued when it was. I have rejected all three of the grounds on which the claim has been pursued. The only one that is said to have some basis in European law, as opposed to being a simple domestic law challenge, is ground 4 – the argument that Orion’s environmental statement was defective and that the Council was in breach of the EIA regulations in granting planning permission – and that ground is clearly without merit. Neither of the other two grounds succeeds, though I am not persuaded that they are unarguable. Had I been considering only whether permission should be granted I would not have been inclined to refuse it for the claimants’ lack of promptness in getting their claim before the court. That, however, is now academic. And I do not think this is an occasion for the court to add to the existing jurisprudence on delay in claims composed of both domestic and European law grounds.

For the reasons I have given, whilst I am prepared to grant permission on grounds 1 and 2 though not on ground 4, the claim itself must be dismissed.