HELEN KINSEY (R on the application of) v LONDON BOROUGH OF LEWISHAM (No 2)

This judicial review case is a sequel. On 18 May 2021 Lang J gave judgment [2021] EWHC 1286 (Admin) (the “First Judgment”) in favour of the Claimant. She quashed (see First Judgment §158) a decision reached by the Planning Committee (the “Committee”) of the Defendant (the “Council”). That decision had granted an application for planning permission made by the Interested Party (the “IP”). The matter was ‘remitted’ to the Council by Lang J, so that the application for planning permission could be considered again, in accordance with the law. At a meeting on 29 June 2021 the Committee resolved to grant the IP’s application for planning permission. Planning permission was formally granted on 18 August 2021. The questions in this sequel case are about whether the Defendant has acted lawfully in granting planning permission, the second time around. Following an exchange of pre-action correspondence (on 17 and 27 September 2021) the Claimant (on 29 September 2021) commenced this claim. The pleaded claim impugned the decision granting planning permission on three grounds. By an application for permission to amend (dated 1 June 2022), the Claimant seeks to add a fourth ground. On 10 February 2022 Sir Duncan Ouseley directed a “rolled up” hearing. That hearing took place before me in-person, in open court. Prior to the hearing, I granted an application made by the Claimant’s representatives –unopposed – for a hybrid hearing to allow members of the public with an interest in the proceedings to observe the hearing remotely. The Court had evidence that an active member of the Sydenham Hill Residents Steering Group (“RSG”) could not – in light of a severe medical condition and the pandemic – attend the hearing, as they wished to do, unless able to attend remotely. That was a good reason for remote-observation arrangements which, since they were to be in place, I extended to others who wished to observe remotely. At and for the hearing, I was assisted by the industry and skill of Counsel for the Claimant (Mr Harwood QC) for the Council (Ms Kabir Sheikh QC and Mr Merrett) and for the IP (Mr White QC and Mr Henderson), and by all other members of their teams, to whom I express the Court’s appreciation.

I gratefully take this “Background” section – almost in its entirety – from passages in the First Judgment (especially §§1-3, 13, 16, 19, 22-33). The grant of planning permission is for the demolition of Mais House and Otto Close garages, and for redevelopment to provide 110 residential units in a part four, six and seven storey building and a part two and three storey terrace building, and associated development, at Sydenham Hill Estate, London SE26 (“the Site”). The Council is the local planning authority for the Site. The IP is the owner of the land and the applicant for planning permission. The Claimant lives with her family in a rented flat in Otto Close which is particularly affected by the proposed development. She is a member of the RSG established by the IP in December 2018 to ensure meaningful resident consultation and effective participation in all aspects of appraising and implementing the proposals for the Site. The Site is 1.35 ha in size, on the Sydenham Hill Estate.

The land on which the Sydenham Hill Estate stands is on the eastern side of Sydenham Hill. It was granted to the IP in 1819. Part of the land was appropriated to the IP’s local authority housing function in 1953, under statutory powers. Sydenham Hill Estate is 2.67 ha in size. It comprises Lammas Green, Mais House, Otto Close, a Community Hall, and a hardstanding ball court/play area. It is set in landscaped wooded grounds, on a steep slope. Lammas Green was constructed between 1955 and 1957. It comprises three terraces set around a village green, with views of the North Downs, and two blocks of flats to the west and north which enclose the green and serve as a buffer to the road. In 1998 it was listed Grade II, as being of special architectural and historic interest. The Sydenham Hill Community Hall and Retaining Walls were also listed Grade II at that time. Mais House was constructed in 1973 and is a part two, three and four storey block. It comprises 63 sheltered housing units for older people. A Sheltered Housing Review carried out by the IP between 2014 and 2016 indicated that the limited accommodation offered at Mais House did not meet modern requirements and was unpopular with the older people for whom it was designed. The option of refurbishing Mais House was considered to be uneconomic. The IP decided to close Mais House in 2016, with a view to re-development, and re-housed all residents. The block was empty by June 2018. Otto Close had been constructed in 1976. It comprises 30 two storey residential units, which are in use. Nearby there are 38 single storey residential garages set in 7 rows, of which only about one third are in use. Lammas Green and Mais House are located within the Sydenham Hill/Mount Gardens Conservation Area (“the CA”). Most of the dwellings and garages in Otto Close fall outside the CA. Thus, the western uppermost part of the Site is within the CA. Lammas Green is an Area of Special Character, characterised by large detached houses with gardens. There are many mature trees which provide a visual and historic link with Sydenham Hill Wood, a large and important remnant of the former Great North Wood which formerly stretched across this part of south London. To the west is Dulwich Wood which is designated as Metropolitan Open Land and a Local Nature Reserve (“LNR”) of Metropolitan Importance.

The IP had undertaken wide pre-application consultation with the Greater London Authority, the Council’s Design Review Panel (“DRP”), local residents, residents’ associations, amenity groups and elected representatives. Following discussions with the Council, the IP had received pre-application advice from the planning officer, Mr David Robinson, who is a Principal Planning Officer in the Council. The DRP had considered a series of draft proposals, and made critical comments on them. As a result of the responses which it received, the IP made a number of amendments to its pre-application proposal. The IP had applied for planning permission on 3 January 2020. In the public consultation, some 209 objections were recorded as received. They included representations from local residents and residents’ associations, the Forest Hill Society, the Sydenham Society, the Council for the Preservation of Rural England (CPRE) London, the Sydenham Hill Ridge Forum, and the Twentieth Century Society (“TCS”). The number of objections had met the threshold in the Council’s Statement of Community Involvement (“SCI”) for a local meeting to be held. It had taken place on 27 August 2020, virtually (because of the pandemic). On 28 January 2020, the Council’s Senior Conservation Officer (the “SCO”), Ms Joanna Ecclestone, had sent to the planning officer a document headed “Conservation comments” (“the SCO Document”: Apx 1 to the First Judgment). It described the CA and the listed buildings, and non-designated heritage assets, and the impact of the proposal. The SCO’s formal recommendation stated:

An Officer Report (“OR”), drafted by the planning officer, had summarised the application and the consultation responses and recommended the grant of planning permission. The OR had contained these conclusionary paragraphs:

On 27 August 2020, the Planning Committee had resolved to grant planning permission, subject to conditions. On 20 November 2020, the Council had granted the IP planning permission in the following terms:

When the Committee had considered the application for planning permission at its meeting on 27 August 2020, certain documents had been listed as “restricted enclosure” and were not made available to members of the public. That was on grounds of their being information relating to the financial or business affairs of any particular person. These documents had comprised the Officer’s presentation on the application and six “public comments packs”, being some 420 pages of consultation responses and other comments by individuals and organisations. In the first judicial review proceedings, the Council (on 1 February 2021) disclosed to the Claimant and her representatives the documents (with redactions) which had been made available to Members of the Committee.

In the first judicial review proceedings, 7 grounds for judicial review were advanced by Mr Harwood QC on behalf of the Claimant. In this section of this judgment, I will seek to encapsulate their essence and what became of them (all of which can be seen in much greater detail in the First Judgment itself). For ease of cross-referencing, I will label them as “Old Grounds” 1-7. Three of them, and part of a fourth, did not prevail. They were (in the same sequence in which the substantive conclusions appeared in the First Judgment):

The other Old Grounds all succeeded (including the other distinct part of Old Ground 1). In those circumstances, the grant of planning permission was quashed. Lang J rejected an argument by the Council and the IP that relief should be refused pursuant to the test (First Judgment §155) in s.31(2A) of the Senior Courts Act 1981 (“the 1981 Act”): that it “appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” (the “HL:NSD test”). That argument failed because, if the legal errors had not occurred, it was “possible that members of the Committee would have concluded that the IP ought to reconsider the height and scale of the proposed development and submit a more acceptable proposal” (First Judgment §157). These were the grounds which succeeded (again, in the same sequence as the substantive conclusions in the First Judgment):

After Lang J quashed the 2020 grant of planning permission, there was no appeal by the Council or by the IP against the First Judgment. The planning application was referred to the DRP in accordance with SCI §6.9 (after the success of Old Ground 6). The DRP held a meeting on 25 May 2021 and issued a report on 10 June 2021 to which the IP responded on 14 June 2021. A new officer report (“NOR”) was produced dated 21 June 2021, for a Committee meeting scheduled to take place on 29 June 2021. The NOR was accompanied by various documents: a Map; minutes of a Local Meeting (4 August 2020); and TEMPO (Tree Evaluation Method for Preservation Orders) Assessment Sheets. There were also Officer’s Presentation slides. The NOR was later supplemented by an Addendum Officer Report (“AOR”), dated 29 June 2021. The NOR (with appendices) was a 249-page document. The AOR was a 5-page document. All of these documents can be found online (by searching “Land at Sydenham Hill Estate SE26” and “DC/20/115160”). In the description below, I will include paragraph numbers of the NOR, even where I am not setting out the relevant contents. I give those references for informed readers – including the parties – and in case any reader wishes to trace the analysis through to the relevant parts of the AOR.

The NOR identified, in the opening pages, what the relevant officer had assessed were the “background papers” (after the success of Old Ground 4). These were: “(1) Submission drawings; (2) Submission technical reports and documents; (3) Internal consultee responses; (4) Statutory consultee responses; (5) [DRP] responses”. The NOR summarised (NOR §§454-463) the contents of sections 66 and 72 of the LBCA Act and (after the success of Old Ground 1) certain paragraphs from chapter 16 of the Framework (in particular Framework §§193, 194 and 196, together with other relevant policy instruments relating to the impact on heritage assets. It set out, in detail (NOR §§63-105), the comments of the SCO from the SCO Document (after the success of Old Ground 2). It did so, within a section (NOR §§62-263) which referenced the notification of internal consultees and their responses. Also within the NOR was a section on pre-application engagement (NOR §§26-51), a reference to the 211 representations recorded as received in objection to the proposed development (§54), a section describing contents of objections (§§55-58) and a reference to the Local Meeting (§§59-61). There was a section on statutory consultees who had been notified and their responses (§§227-263). There was a section on the 4 occasions when the development had been considered by the DRP (§§264-268), including a summary of the DRP’s comments from its 10 June 2021 report together with officer responses (§268). A chapter on planning considerations (§§278-842) was in 9 sections: (i) principle of development (§§279-307); (ii) housing (§§308-387); (iii) social infrastructure (§§388-400); (iv) urban design (§§402-535); (v) transport impact (§§536-601); (vi) living conditions of neighbours (§§602-704); (vii) sustainable development (§§705-748); (viii) natural environment (§§749-831); and (ix) public health, well-being and safety (§§832-842). There were chapters on local finance, equalities and human rights (§§843-861), and legal agreement (§§862-865). At the end of the NOR, chapter 12 contained the conclusion (§§866-875), followed by a recommendation in Chapter 13 to grant planning permission on 35 conditions.

Alongside the NOR (21 June 2021) the Council published various documents online. On 17/18 June 2021, 39 documents were published. 26 of these (published on 17 June 2021) were the internal consultee responses and statutory consultee responses, which Mr Robinson had identified in the NOR as “background papers” (3) and (4). These were discussed at NOR §§62-263 (internal consultees) and §§227-263 (statutory consultees). The other 13 documents (published on 18 June 2021) fell into two categories, which I will call “Pre-Existing” and “New”. The Pre-Existing documents were: the first three DRP Responses (identified in the NOR as “background papers”) (November 2018, March 2019 and July 2019); comments of the Lewisham sustainability manager (undated) and the IP’s response (undated); a green retaining wall document (February 2020); an Ecology Technical Note (7 May 2020); and a demolition site plan (February 2020). The New documents were: the latest (9-page) DRP Response (identified as a “background paper”) (10 June 2021) and IP’s (6-page) response (14 June 2021); an urban greening factor score (June 2021); an IP (8-page) Heritage Statement and TVIA (Townscape and Visual Impact Assessment) Addendum (June 2021); and a further (14-page) Ecology Technical Note (17 June 2021). Other documents were published after the NOR. Another New document – a (19-page) revised Social Infrastructure Study (June 2021) – was published on 23 June 2021. On (Friday) 25 June 2021, another Pre-Existing document was published: IP’s (14-page) response (3 March 2020) to the SCO Document (28 January 2020).

The Committee met on the evening of Tuesday 29 June 2021. It was an in-person meeting, although the IP’s representatives appeared remotely, and was webcast. I was provided with the 64-page transcript of what was said at the meeting. The webcast can (at present) be found online by searching “Lewisham webcast planning 29 June 2021”. The meeting lasted 2 hours 18 minutes. This was the only item of business. The six Committee members present voted (5-1) in favour of granting the IP’s application for planning permission. That was after they had been addressed by: Mr Robinson (as principal planning officer) with Q&A; Mr Anderson and Mr Rush (on behalf of the IP) with Q&A; the Claimant and Mr Harwood QC (speaking as objectors) with Q&A; and a Councillor (speaking under standing orders). There was then discussion (beginning at 1 hr 41 mins into the transcript) and finally the Committee voted (at 2 hrs 17 mins).

Ground 1 concerns the phrase “optimum viable use” in the context of detrimental impact on heritage assets (which I will call “Heritage-Harm”). Mr Harwood QC for the Claimant submits that the decision to grant planning permission was vitiated by a statement in the NOR (NOR §873) about “optimum viable use”. Ground 1 contends that this entailed: (i) a material misinterpretation of relevant and applicable planning policy; (ii) a conclusion for which there was no evidence, or which was unreasonable in public law terms; and/or (iii) a statement which had the consequence that the NOR materially misled members on a matter bearing upon their decision which error went uncorrected before the decision was made (applying the principle in Mansell at §42: First Judgment at §36). In my judgment, at the heart of Ground 1 is a question about whether NOR §873 communicated to Members that planning officers had concluded thatno less Heritage-Harmful scheme would be economically viable.

I need to set the scene. I start by setting out the “Conclusion” section of the NOR (§§866-875), in which NOR §873 appeared. As will later be seen, this section was described at NOR §508 as the “report conclusion”. It was:

I will next set out the “Policy” subsection (NOR §§454-463) from the section on “Impact on Heritage Assets” (NOR §§454-508), within the chapter “Urban Design” (NOR §§402-535):

Next, I set out the subsection “Impact on Heritage Assets Conclusion” (NOR §§501-508), from the same section “Impact on Heritage Assets” (NOR §§454-508), again within the chapter “Urban Design” (NOR §§402-535):

Next, I set out the section “Urban Design Conclusion” (NOR §§527-535), at the end of the chapter on “Urban Design” (NOR §§402-535). It is this section, together with the “report conclusion”, which were referenced at the end of NOR §508:

The next step, in setting the scene, involves identifying the nature and function of the concept of “optimum viable use” – in the context of Heritage-Harm – where it appears in relevant policy. That includes Framework §196, referenced at NOR §§459, 529, 532 and 870. It also includes the PPG (or NPPG), which addresses aspects of “optimum viable use” in the context of Heritage-Harm, in particular at ID18a-015-20190723 (“PPG §15”) and ID18a-016-20190723. Relevant case law on “optimum viable use”, in the context of Heritage Harm, is discussed in the judgment of Sir Duncan Ouseley in Juden v TowerHamlets LBC [2021] EWHC 1368 (Admin) at §§63-66. Two key sources suffice. First, there is Framework §196 itself, which says (emphasis added):

For present purposes, what arise from those two key sources are four distinctive features of “optimum viable use” in the context of Heritage-Harm. I will label these features – for ease of later cross-referencing- as “Applicability”, “Method”, “Idea” and “Consequence”. Here they are:

In the light of these four distinctive features – none of which were disputed – the following point was common ground: the Idea had no Applicability in the present case. That is because the IP’s development proposal did not entail the future “use” of a “designated heritage asset”. The less than substantial harm identified (NOR §§505 and 871) is not harm to the significance of a designated heritage asset whose use is the subject of the development proposal. The IP’s development proposal did not entail using a designated heritage asset. The Idea had no Applicability. The Method was not an applicable Consequence. This is a case of assessed “less than substantial” harm to the significance of designated heritage assets (see NOR §§505 and 871). It is also a case where it is necessary to weigh against that Heritage-Harm public benefits. But it is not a case where the Method of including the Idea of optimum viable use within that balancing exercise would arise.

I turn to another point was also agreed between all Counsel. Everyone agrees that it was, and necessarily would have been, part of the IP’s case – in making and maintaining the application for planning permission – that the development proposal for the Site was one which was a “viable” proposed development: an economically viable use of the Site. It was common ground that it would have been entirely appropriate, and unobjectionable, for the NOR to be describing the development proposal as one which officers were treating as “viable”. There is no vice in the use of that word, in that way.

Next, the following were also all agreed between all Counsel: (a) there was no documented or evidenced case put forward by the IP, or assessed by planning officers, which purported to demonstrate that the IP’s development proposal for the Site constituted the least Heritage-Harm which an economically viable development proposal could entail; (b) there was no reasoning within the NOR which gave a reasoned evaluative basis for such a conclusion; and (c) in those circumstances such a view expressed by officers in the NOR could not have been a reasonable one in public law terms. Unlike certain other situations where a portion of affordable housing may form part of a development and the planning authority may be considering what the appropriate portion should be, by reference to a “viability study” which looks at the viability of the scheme by comparison with alternatives, no “viability study” had been necessary or appropriate or provided in the present case. In short, officers could not reasonably have reached the view thatno less Heritage-Harmful scheme would be economically viable.

I have taken some time to set the scene. Having done so, I can now turn to identify the essence – as I saw it – of Mr Harwood QC’s argument on Ground 1. It runs as follows. In the first part of NOR §873, officers communicated to Committee Members the very view for which – as has rightly been accepted (§23 above) – there was no proper basis. This view was communicated within the, all-important, Conclusion Section of the NOR. It was, moreover, a prominent part of that important section. What was expressed was an evaluation by officers (“Officers consider that …”). That was the clear communication of a considered view. What was expressed was a significant public benefit, in an evaluative balancing exercise. The use of the phrase “optimum viable use” was, unmistakably, a reference back to that very same phrase as described in Framework §196. This was the identical phrase (“optimum viable use”) which appeared in the description of the contents of Framework §196, as a public benefit: see NOR §870. The language is identical. The paragraphs (NOR §§870 and 873) are closely proximate. They each appear in the Conclusion Section. The link is obvious and would have been obvious to any reader. On any view, the officers writing the NOR were in error about “optimum viable use”. That Idea had no Applicability in the present case (§21 above): this Site did not comprise a designated heritage asset; and no use of such an asset would be entailed by this development. That is why, in defending this claim, the Council (supported by the IP) has characterised the phrase “optimum viable use” as involving “stray words”. But that characterisation, of “stray words”, effectively concedes that there was an error of approach, and a miscommunication. The fact is that a public interest benefit – a specific virtue – of the development was clearly being communicated at NOR §873. And what was being communicated was the Idea of “optimum viable use”, as applied to this Site in the context of this development. Members were being told that no smaller development would be economically viable. That was an unsustainable view.

It is appropriate that Committee Members should be taken to have a sufficient policy-appreciation of what the Idea of “optimum viable use” is, in the context of Heritage-Harm. The Idea is the least Heritage-Harm that an economically viable development could do (§20iii above). To a Member having that policy-appreciation, NOR §873 would have read in the way identified in the pre-action letter before claim (17 September 2021), namely (emphasis added):

Not only did the error go uncorrected before the decision was made (Mansell at §42(2)), but the position was exacerbated. This is the proof of the pudding. It illustrates how Members were misled by NOR §873. Members plainly picked up on the point at the meeting, as the transcript shows. Mr Robinson, as the case officer who had written the NOR, made an oral presentation. In the course of it, he repeated that: “Overall, officers consider that the proposed development secures the optimum viable use of the site”. The Claimant herself told Members: “We’ve not seen a viability report”. After those speaking for the IP had made their presentation, one of the Committee Members asked: “Why not scale it back a bit further to pull people along with you? Particularly in respect of the height.” The speakers on behalf of the IP responded, stating: “We have to balance what we are bringing forward with a viable and deliverable scheme and we feel that the scheme we have before you judge that”. They added: “It’s difficult. It been a challenge and we have attempted, where we can, to compromise and make changes…”. The Committee Member pressed the point, asking straightforwardly:

All of this was highly material. Smaller alternatives were a key theme in relation to the key issue of Heritage-Harm as assessed through the prism of applicable planning policies. The size of the proposed development and the virtues in heritage-harm terms of scaling down the proposal was a central feature of the judicial review claim which had just succeeded. The application was remitted for reconsideration precisely because it was possible that the Council might decide that the IP ought to re-consider the height and scale of the proposed development, and submit a more acceptable proposal (First Judgment §157). The objectors were “not opposed to the redevelopment of the Site in order to upgrade the existing social housing and increase the number of residential units” but the objection “related to the inappropriate height and scale of the new buildings, which would harm the setting of the Grade II Listed buildings and the Conservation Area” (First Judgment §156). Scaling back was the central point being made by the claimant and Mr Harwood QC at the meeting. It was a key theme in the articulated views of the SCO – in the SCO Document – which had been omitted and the original decision was taken. It was a key theme in the response of TCS. It was the key issue arising from the response by the DRP to whom it had been necessary to refer the proposal. It was right in the heart of the decision that members were making. It was highly material within the NOR. The “conclusion” section of the NOR (§§866-875) were the most crucial contents of the entire document. Any Committee Member relying on the NOR would have focused in particular on those ten paragraphs in these two pages. They would have focused in particular on the four key paragraphs (NOR §§870-873) which squarely addressed Heritage-Harm. The point made at NOR 873 about securing “optimum viable use” of the site was a key feature.

The misleading message in NOR §873 cannot be ‘rescued’ by a detailed forensic analysis which invokes other contents in the NOR. It is true that the relevant view (“Officers consider that the proposed development secures the optimum viable use of the site”) was not a view expressed anywhere else in the NOR: not in the section on “Impact on Heritage Assets” (NOR §§454-508); nor in the subsection on Impact on Heritage Assets Conclusion (NOR §§501-508); nor in the section Urban Design Conclusion (NOR §§527-535). But there are two points. First, the “Conclusion Section” mattered. Committee Members would have looked to it as a key, standalone section, without needing to scour the rest of the NOR to see whether anything appeared to be out of place. Secondly, reading the NOR as a whole would reinforce the message that a new, key and freestanding point could be found in the Conclusion Section. As to that, NOR §508 stated, in terms, that the all-important “balancing exercise” could be found “outlined in the report conclusion and urban design conclusion below”. It follows that the “report conclusion” was intended to add something to the urban design conclusion, in the articulation of the balancing exercise. The same follows from NOR §534, which spoke of the public benefits identified in that urban design conclusion “as well as other planning merits noted in the conclusion of this report”. Even when the NOR is conscientiously read as a whole, and in detail, the conclusion at §873 would have been read by a Committee Member as adding a ‘key point’; a key ‘planning merit’. It is nothing to the point that this key benefit – public benefit – does not feature in lists of public benefits (eg. NOR §§531, 872), which precede NOR §873. The ‘key point’ which NOR §873 was adding was the communicated assessment of “optimum viable use”, as that term would have been understood in the relevant Heritage- Harm policy source (referenced in NOR §§459, 503, 532 and 870), because that was assessed by officers as “appropriate” in Framework §196 terms. For all these reasons, and in all these circumstances, the decision cannot stand on this important issue. It must be quashed and the matter remitted, again, for consideration on a legally correct basis.

This is a powerful and sustained argument. I am satisfied that it crosses the threshold of arguability. I am also satisfied of two further things. First, if the Claimant were right that NOR §873 was communicating to Members that planning officers had concluded thatno less Heritage-Harmful scheme would be economically viable, that would be materially misleading in Mansell terms. Secondly, in those circumstances the HL:NSD test could not avail the Council and IP, any more than it did in the first judicial review claim (First Judgment §§155-157). I will grant permission for judicial review. But I cannot accept the Claimant’s argument. I have concluded that this ground for judicial review is not well-founded and does not succeed. I will explain the reasons why. First, it is a well-established principle that what is needed is “a fair reading of the report as a whole” (Mansell §42(2); First Judgment §36). That makes the focus whether – on “a fair reading of the report as a whole” – officers would or could have been understood by Members to be communicating their assessment that: (as it was put in the letter before claim) “a less harmful scheme would not be viable”.

Secondly, if that was what was being communicated at NOR §873, it would mean that a point was being made – describing a position which officers considered was the case – which had no support anywhere in the NOR. The NOR recognised that the identified Heritage-Harm would be reduced if the size of the development were smaller. But there is no discussion, anywhere in the NOR, of a smaller and less Heritage-Harmful scheme not being viable. No reasons are given, anywhere, for an assessment by officers to that effect. No material or evidence is identified in the NOR, anywhere, by reference to which such an assessment had been arrived at. As the Claimant rightly submitted in the pre-action letter before claim, and in the grounds for judicial review: it had not been the position put forward by the IP as the developer that ‘a less harmful scheme would not be viable’; and the first suggestion of this was made by the IP at the meeting in Q&A. In a very detailed NOR, a report with 875 paragraphs over 134 single-spaced pages, a point would have been communicated which had no support, anywhere else. It is right to remember, as I have explained (§22 above), that the development was being put forward as, and properly accepted by officers to be, a “viable” scheme. But there was no support or reasoning, anywhere in the NOR, as to comparative “viability”, to link to a conclusion about a smaller scheme lacking “viability”.

Thirdly, Mr Harwood QC says that the practical realities for Members can be seen from the discussion at the meeting, reflected in the Minutes. However, taking that approach, it is conspicuous that the question of whether a smaller development would be economically viable was raised with the IP, as a question which arose out of what the IP had said to Members. Mr Harwood QC accepts that it was open to a Committee Member to ask that question, for the IP to answer it (saying thatno less Heritage-Harmful scheme would be economically viable), and for the Committee then to proceed to make a decision in light of the entirety of the discussion. Nothing said at the meeting suggests or supports any attribution to officers, in the NOR, or in Mr Robinson’s presentation, of a conclusion on that point: that no smaller development would be economically viable. This was not put to Mr Robinson. And when it was raised and discussed, it was not said – by anyone – to be a view which officers had assessed, reached and expressed. It was simply a question being raised with, put to, and responded to, by the IP.

Fourthly, the NOR does not set out for Members what “optimum viable use” means as an Idea, in Framework §196. The PPG is mentioned throughout the NOR: references appear at NOR §§439, 441, 460, 694, 730, 750, 807-808, 832-833. But there is no discussion or summary of PPG §15. There is no description which would have told a reader that the Idea of “optimum viable use” means ‘the least Heritage-Harmful economically viable use’. Mr Harwood QC’s argument posits a Committee Member who had a pre-existing appreciation of policy, making them familiar with the Idea. But a policy-appreciating Committee Member, who understands how Framework §196 and PPG §15 operate in practice, would also understand that “optimum viable use” as the Idea featuring in Framework §196 was Inapplicable in the present case. It was Inapplicable because this was not a development entailing the use of a heritage asset. It was that Inapplicability to which Sir Duncan Ouseley pointed in his observations at the paper stage of the present case. He did not see any vitiating flaw in the NOR. Rather, he identified as the question whether the Council may unreasonably have relied on what it was told at the meeting on behalf of the IP (“to reduce [the scheme] further … would make it non-viable”). As to that – as Mr Harwood QC accepts – the question-and-answer at the meeting cannot, of itself, constitute a vitiating flaw. The policy-appreciating Member would also understand the Method (§20ii above) and the Consequence (§20iv above). They would see from the NOR that officers’ ‘balance-sheet’ lists of public benefits (NOR §§531 and 871) did not include “optimum viable use”. They would see, in NOR §873 itself, what is said in the rest of that paragraph: the great weight that has been afforded to the Heritage-Harm; that it is “the significant public benefits presented by the scheme” which “outweigh the less than substantial harm that has been identified”; that those “significant public benefits” are a reference to the “public benefits presented by the proposed development” which had been “summarised below” in the list set out at NOR §872 and which had “been weighed against the heritage harm identified”. No “optimum viable use” featured in that list. It would have done, had officers been applying the Method, familiar to a policy-appreciative Member.

Fifthly, the point that was being communicated at the beginning of NOR §873 by the words “optimum viable use” was not a message about the non-viability of a smaller development. Rather, it was a message about the “optimum use” of the site delivered by this “viable” development. This, in my judgment, is clear from a fair reading of the NOR. The NOR was replete with contents which supported this as an important point:

Sixthly, given the importance of this theme – earlier in the NOR – about the use being the “optimum” use of the site (§33 above), the question is this: where else was this “optimum” point being communicated in the Conclusion Section, if it is not the point made at the start of NOR §873? As has been seen, the “optimum use” point is epitomised by NOR §387 which states that this “optimisation” of the site was a “material public benefit” afforded “substantial weight” by officers. I asked Mr Harwood QC where within the Conclusion Section (NOR §§866 to 875) this important “optimum use” point was to be found expressed. His answer was that it would be understood as ‘feeding through into’ the first two bullet points of NOR §872. As has been seen, those bullet points list as public benefits presented by the proposed development. Mr Harwood QC’s submission is that those bullet points were communicating, and would be understood to be communicating, the points made elsewhere about “optimum use”. On that basis, he is able to hold to the position that the view being expressed at the beginning of NOR §873 (“optimum viable use”) was one which was not reflecting “optimum” use of the Site in the sense communicated in those earlier passages. I agree with Mr Harwood QC and Ms Kabir Sheikh QC that the “optimum use” flows with NOR §872 (and §868). But Mr White QC is right, in my judgment, that NOR §§868 and 872 do not communicate that the virtuous housing use is the “optimum” for the Site. The fact that “110” additional homes are being delivered – including 20% family homes – as a “substantial quantum” does not, of itself, communicate that the Site is being used in a way which is “optimum”. That is an additional dimension. It is not found in NOR §872. It is found at the start of NOR §873.

Overall, a number of points support the conclusion that the NOR was not materially misleading at NOR §873. It is regrettable that the phrase was used, taken from Framework §196, to which there was a clear link (NOR §§870 and 873). Everyone agrees that the Idea had no Applicability. It follows that the officers’ use of that phrase in NOR §873 was inappropriate. That use of that phrase did not – could not – reflect Framework §196. But what officers were clearly saying at NOR §873 was that they considered this to be a “viable” development which “secures the optimum use of the site”. Officers did not introduce a conclusion for which there was no evidence, or which was unreasonable in public law terms. There was no statement which had the consequence that the NOR materially misled members on a matter bearing upon their decision. The substance of what was being communicated was not misleading. It identified a proper and relevant planning virtue. A number of points and perspectives support these conclusions. Different paths lead to the same destination. But that destination entails a straightforward reading of the NOR, and of the language used. That straightforward reading applies to the Conclusion Section, when read in isolation. It does not lose sight of the practical realities from the perspective of Committee Members, and others, reading the NOR. By way of an ‘end-note’, I add this. It is not unfair to note that, when Mr Harwood QC came to address Committee Members at the meeting, he did not point to NOR §873 as a ‘red-flag’ paragraph which misleadingly told Members that officers had conducted an assessment – that ‘no smaller development of the Site could be economically viable’ – without any supporting reasoning or evidence. No contemporaneous document reflects anyone reading NOR §873 in that way at that time.

Grounds 2 and 3 relate to issues regarding publication of documents by the Council, and the implications of non-publication and the timing of publication. These Grounds overlap and it makes sense to deal with them together, as all Counsel did. Ground 3 is about documents that were not published. Ground 2 is about documents that were published but on dates close to the date of the meeting.

Ground 3 is a non-publication ground. The contention for the Claimant is that it was a ‘vitiating breach’ of statutory duty, arising pursuant to section 100D(5) of the 1972 Act, for the Council to fail to publish – 5 clear days before the Committee meeting on 29 June 2021 – the other “consultation responses” discussed in the NOR (in a 5½ page section at NOR §§54-58). The essence of this ground for judicial review, as I saw it, was as follows. Parliament has imposed an important statutory duty to publish within “five clear days” the “background papers for the report” (s.500D(1)), which means “those documents relating to the subject matter of the report which (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in [the proper officer’s] opinion, been relied on to a material extent in preparing the report” (s.500B(5)). Although those criteria require a judgment (“opinion”) of the proper officer, it was necessarily the case that the consultation responses constituted “background papers”, and the contrary conclusion was untenable and unreasonable. That is because, in principle, documents are necessarily background papers where they are “relied on” in a planning officer’s report like the NOR. That includes consultation responses, “discussed” in the NOR. This is the principled approach to the statutory duty. It was, rightly, recognised by Mr Robinson in his identification of the “internal” and “statutory” consultation response documents as being “background papers”. The consequence is that consultation responses – as are commonly ‘gisted’ for committee members in an officer’s report – stand as “background papers”. Publication is required. This reflects a practice of transparency adopted by many local authorities. Applying the principles identified in the case-law described by Lang J (First Judgment §§101-103): this approach to access to background papers promotes the statutory purpose of allowing the public to be informed; it allows effective informed participation through written representations in advance of the meeting; it allows the preparation of oral representations at a meeting; breach of the statutory duty is significant as undermining the purpose of the legal obligation conferring the right to know which puts members of the public in the position of making sensible contributions to democratic decision-making; and the failure is a significant one which in the circumstances of the present case has a vitiating consequence and warrants the quashing of the decision made at the meeting. The relevant case law comprises, in particular: R (Joicey) v Northumberland County Council [2014] EWHC 3657 (Admin) [2015] PTSR 622 at §47; R (Holborn Studios Limited) v London Borough of Hackney (No. 2) [2020] EWHC 1509 (Admin) [2021] JPL 17 at §71; and R (McCann) v Bridgend County Borough Council [2014] EWHC 4335 (Admin) at §27.

A linked contention is made under Ground 2 (timing of publication), as follows. The IP’s response (3 March 2020) to the SCO Document (28 January 2020) was a “background paper” for the purposes of the same statutory duty, because it was a document relied on in the NOR (in particular, at NOR §§480, 497). Although published on 25 June 2021, ahead of the meeting on 29 June 2021, that was not the “five clear days” required by the 1972 Act. The breach was significant, having regard to the purpose of the duty. It has a vitiating consequence and quashing of the Committee decision is appropriate.

I cannot accept these submissions. I will explain why. A useful and proper starting-point is the First Judgment. Mr Harwood QC submitted that his arguments about consultation responses as “background papers” under the 1972 Act fell within the scope of Old Ground 4, which Lang J upheld (First Judgment §§104-108). His difficulty in that respect is that, although Lang J referred to the fact that none of the consultation responses had been included in the published documents (§106), she referred only to the SCO Document in upholding Old Ground 4, a ground which she upheld only because of a misdirection in law (First Judgment §107). That misdirection of law was a point referable to the SCO Document, as an “internal” consultation response. It could not arise in relation to external consultation responses. So, insofar as Old Ground 4 argued that external responses were “background papers”, it did not succeed. Lang J went on to say that it “seemed likely” that the SCO Document was a “background paper”, given that Mr Robinson in the OR had “relied heavily” on “facts and matters contained in it”, particularly in relation to the significance of the heritage assets (First Judgment §108). Even then, Lang J emphasised that it was Mr Robinson’s function – as the proper officer – to decide what in his “opinion” constitutes a “background paper”, and the judicial review court should not “supplant his role” (§108). That assessment, in my judgment, is inconsistent with the view that – as a matter of law, and in principle – any consultation response or any document which is “relied on” in an officer’s report is a “background paper” and cannot reasonably be concluded to be otherwise. The First Judgment does not support Mr Harwood QC. But I will put that to one side, and turn to consider the argument on its legal merits, as they seem to me.

A fundamental difficulty, in my judgment, is that it would have been very easy indeed for Parliament – in the design of section 100D(5) – to have prescribed that a “background paper” includes “any document whose contents are discussed in the report”, or “any document on whose contents an officer has relied in preparing the report”. Parliament did not do so. The phrase “relied on… in preparing the report” was used by Parliament. But that is within the second precondition in section 100D(5)(b): documents which “have … been relied on to a material extent in preparing the report”. That brings in “to a material extent”. And reliance, to a material extent, is not enough. It is also necessary (“and”) that the documents – relating to the subject matter of the report – are documents which “disclose any facts or matters on which ... the report or an important part of the report is based” (section 100D(5)(a)). Added to all of this is the fact that Parliament spelled out that these tests involved judgment and appreciation. It is for the “proper officer” to form an “opinion” on each of the limbs (a) and (b). It is very clear from the structure of the statutory duty that the fact that a document is described in a report, or summarised (gisted) for the benefit of decision-making members of a committee, or relied on, does not of itself trigger the statutory duty. The proper officer must direct themselves correctly in law – asking themselves the right questions – and Old Ground 4 succeeded because of a misdirection in law. In the context of the NOR, an exercise of evaluative judgment was plainly undertaken, by the proper officer. No misdirection in law – asking the wrong question – has been identified. There is no unreasonableness in the exercise of evaluative judgment. A witness statement from Mr Robinson is before the Court. He explains that the external consultation responses that they were not considered to be “background papers” as they did not disclose any facts or matters on which, in his opinion, the NOR or an important part of it was based; and nor, in his opinion, were they relied on to a material extent in preparing the report. Rather, they were summarised in the report for Members, as is usual practice. He says of the IP’s response to the SCO Document that, in his opinion, this did not meet either of the criteria in section 100D(5)(a) and (b). Rather, the document was quoted in the NOR as a statement of response to the points made by the SCO Document, to provide Members with background on the differing views taken to the heritage impact of the development scheme. There is no misdirection in the approach described in that evidence. The evaluative judgments are plainly reasonable. I add this. Even if the IP’s Response to the SCO Document had required characterisation – acting reasonably – as a “background document”, that document was published some four days before the meeting. In my judgment, a breach of that kind standing alone could not in the circumstances justify the quashing of the decision, having regard to the significance of the failure and the purpose of the duty, applying the approach in the case-law (see McCann §27). In my judgment the section 100D(5) arguments are plainly unsustainable. They do not even cross the threshold of arguability, and I refuse permission for judicial review on Ground 3 and this part of Ground 2.

A distinct aspect of Ground 2 (documents published close to the date of the meeting) is a contention which invokes the SCI. This was the policy instrument which was the subject of Old Ground 6 on a different point (legitimate expectation and non-referral to the DRP). The legal background in relation to the SCI is, as I mentioned earlier, discussed in the First Judgment at §§119-129. Some of the substantive contents of the SCI are discussed in the First Judgment at §§130-138. The Claimant’s argument relating to publication and the SCI is, in essence as I saw it, as follows. SCI §6.7 refers to the stage when a planning application is submitted and the details of the application are entered onto the statutory register. The SCI earlier (§§4.1-4.2) describes “how the community can access planning information” and explains that information can be accessed in a number of ways, which include the application register but also accessing current planning applications”. That clearly contemplates a distinction between “current planning applications” and information which is entered on “the application register”. As a matter of the correct objective interpretation (a question for the Court) – or alternatively by way of legitimate expectation arising out of the clear and unambiguous statement, or alternatively by reason of the sole reasonable application of the SCI – the position, in principle, is this. Any ‘developer-submitted material in support of a planning application’ falls within the phrase “current planning application” for the purposes of SCI §4.2. It is true that all ‘developer submitted material in support of this planning application’ was published. It is also true that the “New” documents published on 18 June 2021 – such as the IP response to the DRP June 2021 report, the IP’s Heritage Statement and TVIA Addendum, and the new Ecology Technical Note – were all published promptly, the “Old” documents published on that date were not. Those “Old” documents included the IP’s response to the sustainability manager’s comments (undated) and the original Ecology Technical Note (7 May 2020). In Joicey at §§46-52, the Court explained that a technical document provided only 36 hours before a meeting constituted a breach of an undertaking in the local authority’s SCI, because materials relevant to the taking of a decision publishable in accordance with the SCI “require timely publication”, meaning publication “in good time” to members of the public to be able to digest the information and make intelligent representations, where the very purpose of the legal obligation was to put members of the public in a position where they could make sensible contributions to democratic decision-making, and where the question of timeliness turned on factors such as the character of the information, the audience and the bearing on the decision. Just as the late supply of the technical document in Joicey constituted a vitiating breach of the terms of the SCI in that case, so too does the late publication on 18 June 2021 and 25 June 2021 do so in this case.

Again, I can start with the First Judgment as a reference-point. The duty for which the Claimant contends is a duty in accordance with the SCI to publish all ‘developer submitted material in support of the planning application’. Mr Harwood QC candidly accepted that this was not advanced among the Old Grounds for judicial review. Had it been a good ground of challenge it could have arisen in those proceedings, given the absence of publication of documents submitted by the developer in support of the planning application. Questions of publication and disclosure featured in the first judicial review. So did the SCI, which underpinned Old Ground 6 (referral to the DRP). At the very least, this brings into sharp focus whether the point is a good one. Having said that, I will again turn to focus on the legal merits of the point now advanced.

In my judgment, it is not arguable that the phrase “current planning applications” when it appears in SCI §4.2 extends to ‘any developer-submitted material in support of a planning application’. Take the IP’s response to the SCO Document. That response dealt with points which had been raised in the context of the local authority processes relating to planning decision-making. But, in my judgment, that does not make a document of that kind part of the “current planning application”. I would accept that phrase “current planning applications” is capable of being broader than the reference to documents which appear on the register of applications. I would accept that there may be cases in which a judgment has to be exercised as to whether some document has so close a nexus and so integral a content, perhaps in the context of a relevant revision in what is being sought, as to fall within the phrase “current planning application”, for the purposes of being within the listed information which the community can access within the terms of the SCI. To take another example, the 4-page Ecology Technical Note of 7 May 2020 described ecological measures to address the Council Ecologist’s comments. It served to supplement an Ecological Assessment Report dated November 2019. It contained supplementary information to clarify indicative locations and types of bat roost features, bird nest boxes and swift call systems to be installed as part of the development, to safeguard protected species, mitigate ecological impacts and achieve ecological enhancements. In the witness statement of Mr Robinson, he explains that a document or response that comes forward as part of the planning assessment process does not, in his judgment, thereby form part of the “planning application” required to be published in accordance with the SCI. In my judgment, there is no arguable misdirection in law, or misinterpretation the SCI, or breach of a clear and unambiguous and unqualified representation, or unreasonableness in applying the SCI. Had it been the intention of the SCI to provide a duty of publication in the case of all and any ‘material submitted by developer in support of a planning application’, it would have been very easy for the SCI to say so. It is not, in my judgment, arguable that the phrase “current planning applications” extends to all documents of that kind. In my judgment this aspect of Ground 2 is not arguable and I refuse permission for judicial review in relation to it.

In those circumstances, the argument cannot succeed. But there is another point. The ‘developer-submitted material’ was published on 18 June 2021. The Social Infrastructures Study was published on 23 June 2021. The IP response to the SCO Document was published on 25 June 2021. The SCI does not include a prescribed time-frame. But it is helpful to put the duty to publish in the SCI alongside the 1972 Act scheme, as it was in Joicey at §47. Even if a duty of publication had arisen by virtue of the SCI, the timings of these publications would not, in my judgment, serve to vitiate the decision made on 29 June 2021. I would reach that conclusion in the circumstances of the present case and having regard to the factors identified in Joicey at §47: the character of the material; the audience; and the bearing on the decision. I will return to other aspects regarding the timing of publication in the context of the procedural fairness issue, to which I now turn.

There is a remaining distinct strand of Ground 2. It concerns procedural fairness at common law. It involves looking at the position regarding the publication of materials, in the round, in the context and circumstances including as to: the publication of materials; the nature of those materials; the date on which they were published; the time-frame prior to the meeting; the implications for the Claimant and her representatives; the implications for the public more generally; and the implications for fair and informed decision-making, in the public interest. The Claimant’s argument, in essence as I saw it, is as follows. After the hand-down of the First Judgment (18 May 2021) the Council proceeded, with conspicuous “haste”, to refer the matter back to the DRP, who met just 7 days later on 25 May 2021 and reported on 10 June 2021; and then to summons on 21 June 2021 Members of the Committee to the meeting on 29 June 2021. After this Court had granted judicial review on no fewer than four grounds this, together with the timing of publication of materials and given the IP’s action in providing updating and responsive further material, combined to produce a highly truncated timeframe. It was, in the event, too fast to be fair. There was no obvious reason why the timetable should have been so heavily expedited and so rigidly adhered to. Alongside the 249-page NOR (published on 21 June 2021), the Claimant and her representatives, the RSG and relevant members of the public, faced a wealth of materials being published at a very late stage. In addition, they faced the publication on 17, 18 and 25 June 2021 of materials which went back to 2018 – 2020. There is no reason why those could not have been published far earlier. The contents included technical documents which were not easily digested. The audience included ordinary members of the public. The subject-matter of this material was highly relevant. It included key aspects, including those relating to heritage assets and Heritage-Harm which had been the central focus in the first judicial review. There was also no reason why there could not have been a short period of deferment, to allow a further opportunity for materials to be digested, so that members of the public and the Claimant and her representatives were all in a position to make intelligent representations, to make sensible contributions to democratic decision-making, including by written observations; and, in the case of the Claimant and Mr Harwood QC, in their oral representations. Those oral representations involved the rigours of a five-minute speaking slot. The IP, by contrast, was able to put in a sequence of documents and was far better informed and forewarned to make its representations. Whether or not there was compliance with the “five clear days” statutory duty under the 1972 Act, common law fairness stands alone and supplements the statutory scheme. It is not displaced by the statutory overlay. The question arises – which is always a question for the Court to decide – whether on the facts and in the circumstances of this individual case there was an unfair process. If so, the appropriate remedy is to quash the Committee’s decision and require reconsideration in accordance with standards of procedural fairness, something which could have taken place at any time since July 2021.

The serious concerns which arose in relation to procedural unfairness were resoundingly reflected in a number of sources brought to the Committee’s attention. Points were made in response: by the Chair, referring to the timing of publication as linked to late representations having been received; and by the Council’s junior barrister (Mr Merrett), to the effect that the 1972 Act had been complied with and, whether or not unfair, the problem lay in the design of that statutory scheme. These were not good answers. The Committee could have dealt with the matter fairly in a number of ways: (i) refusing the application; (ii) deferral with a direction that the IP should revise the application and reduce the size of the proposed development; or (iii) adjournment. In the event, the Claimant, Mr Harwood QC, and others who expressed procedural concerns, invited (i) or (ii) and did not invite (iii). But that does not alter the fact that there was procedural unfairness in proceeding to grant planning permission. Nor does it begin to constitute a “waiver”. The Claimant wrote to the Committee Members on 27 June 2021, expressing her surprise that the same application had been submitted with such haste. Her solicitors wrote to Councillors, stating that bringing the application back to Committee when a large amount of material has been published “less than a fortnight” before the meeting and, in critical respects, “less than a week” before the meeting was “grossly unfair”, there being no real opportunity for the public – even those very heavily engaged in the application – to consider the material and comment on it. The RSG emailed Committee members on 28 June 2021. The RSG asked why there had been no further “consultation” and pointed out that more than 40 documents had been published very late on the Council’s website, with insufficient time for the RSG to consider them. That included – explained the RSG – extremely important documents such as: the conservation officer comments; the response from the DRP after its May 2021 meeting; the Social Infrastructure Survey; the IP’s response to the DRP; and the IP’s response to the conservation officer comments. As the RSG pointed out, this “cannot be considered fair to the public, nor compatible with [relevant] aspirations for ongoing community engagement to ensure public support”. Helen Hayes MP wrote to all Committee Members expressing concern at the “extreme haste” in bringing the application back before the Committee and expressed her concerns that documents now included within the NOR had not been raised with “adequate time for any meaningful action to be taken in response to them”. Caroline Pidgeon AM wrote to the Council’s Director of Planning on 29 June 2021, expressing surprise that the planning application had returned to the Committee so soon after the judicial review and communicating having received representations from local residents who felt that their concerns were not being listened to. At the meeting, the Claimant herself told the Committee that she had had to “absorb 42 new documents in just 12 days”, as a member of the public. Mr Harwood QC told the Committee that the “background papers” had come “late”, and some had not been produced at all, and said in the circumstances it would be “unfair” to objectors, who had had to deal with that, to “grant permission this evening”. Questions were raised by Committee Members about the timing of documents. In response, Mr Harwood QC referred to the documents which had been published and the timing, saying: “a lot of material has come through late”, meaning “the Committee doesn’t have the benefit of comments on that material” and “the Claimant’s team haven’t had the chance to deal with it”. The Councillor who spoke under standing orders stressed the importance of having time to interrogate the documents which had been produced. Mr Robinson addressed the Committee on the nature of the recently published documents, describing “most” of the documents as “consultation responses” which “we published as background documents” in light of the First Judgment, and other documents as including “addendums and updated reports”. The Committee Member who ultimately dissented asked “why the meeting could not have been deferred for 14 days” and “why not just allow enough time” in the context of a very contentious application. That, then, is the argument.

In my judgment, this ground of challenge crosses the threshold of arguability, and I grant permission for judicial review. But it nevertheless fails on its legal merits. The key points are these. First, the Council was entitled, in principle, to deal with the matter promptly. The reasons were given by the Committee Member who moved that the Committee approve the recommendations as reported tonight, subject to changes that had been outlined at the meeting. That Member referred to the massive need for decent social housing in the borough and across London. He said: “yes, time must [be] taken, but there comes a point when a decision has to be made and for me, I think, that decision is tonight”. The Committee proceeded to a decision. The expedition with which the matter was dealt did not undermine the Council’s ability to deal with the flaws which had been identified by Lang J in the First Judgment, which was one of the question-marks raised about haste. None of the grounds for judicial review advanced in this sequel case involve contending that the Council failed to remedy a flaw identified in the First Judgment. None of them have been re-run.

Secondly, the 1972 Act is an illuminating contextual reference point. I would accept Mr Harwood QC’s submission that the provisions of the 1972 Act and the “five clear days” applicable to “background papers” do not ‘occupy the field’. By that I mean they are not exhaustive of applicable legally duty. They do not serve, in principle, to exclude any operation of common law procedural fairness. Nevertheless, the provisions of the 1972 Act – identified by Parliament – do, in my judgment, serve as a relevant reference point, when consideration is given to questions of timing and the publication of materials in the present context. Parliament’s carefully considered view was that publication could be within a tight and disciplined timeframe, promoting efficient despatch of local authority business.

Thirdly, the position regarding the NOR is significant. The NOR was published on 21 June 2021. That is accepted to have been within the applicable statutory deadline for publication of such a report. It is no part of Mr Harwood QC’s common law unfairness argument that the NOR itself was published too close to the meeting on 29 June 2021 – 8 days later – for the process to be fair. His focus, rather, is on other documents published on 17 and 18 June 2021, and on 23 and 25 June 2021. The NOR, in my judgment, is of real significance when consideration is given to procedural fairness.

Fourthly, it is important to keep in mind those public law principles which are applicable to the question of “reconsultation”: whether a further round of public consultation is required by a change of circumstances. Public consultation duties carry with them particular requirements relating to information to be provided, the time to be allowed for informed responses, and the steps requiring to be taken in the light of their receipt. As has been seen, one of the themes in the objections regarding haste and late publication of documents concerned further “consultation” stage. But that reconsultation issue was convincingly addressed for Committee Members in the AOR of 29 June 2021. As officers there explained, they had assessed the position as being that public “reconsultation” was not necessary or appropriate. It is common ground that they were right about that. Importantly, it is no part of the Claimant’s judicial review grounds that this was a case in which a public law duty of “reconsultation” arose. That means the process needs to be considered in the context that this was not a reconsultation case, attracting the public law requirements applicable to consultation. Rather, it was a case where materials were being published including a very detailed officer report (the NOR), with the opportunity to make any written representation, and the Claimant and Mr Harwood QC having the opportunity to address committee members directly to make any headline point.

Viewed in the context of all this, I cannot accept that the process was procedurally unfair, to the Claimant or to others. I appreciate that relevant documents were published, close to the date of the meeting, which were multiple technical documents, in the context of an important decision, engaging the public interest. I do not underestimate the importance, even outside the question of consultation and reconsultation, of the purposes engaged by fair process, in terms of objectors and ordinary members of the public being in a position to make sensible contributions to democratic decision-making, seen in Joicey at §47. In Joicey, there was legally inadequate time when a new technical 74-page noise assessment had been disclosed with 36 hours to respond to it, in circumstances where more detailed representations could have been made and an expert instructed (§§52-53). In my judgment, in all the facts and circumstances of the present case there was no breach of the standards of common law fairness. Whilst Mr Harwood QC submits, and I would accept, that it is not a precondition for success in a procedural challenge for the Claimant to be able to identify some material point that would and could have been made, it is nevertheless, in my judgment, fair to point out that he has not been able to draw to my attention any key point arising out of the published materials – in light of the discussion in the NOR – which he says could all words have been picked up by the Claimant or any other person which could have undermined the assessment being put forward in the NOR which members of the committee accepted. For all these reasons, I cannot accept the common law unfairness strand of Ground 2.

Ground 4 is a belated ground for judicial review, in respect of which permission to amend is sought. At its heart is a 6-page letter (the “LWT Letter”) dated 16 March 2020, written by the London Wildlife Trust (“LWT”). The letter contained LWT’s “observations” of substance on aspects of the application for planning permission. Those observations were primarily in respect of impacts upon the Site and the nearby Site of Metropolitan Importance for Nature Conservation Dulwich and Sydenham Hill Woods, in circumstances where most of Sydenham Hill Wood was also designated as an LNR. The LWT Letter explained that it has managed Sydenham Hill Wood since 1982 and that its boundary was just 15m from the application Site. The LWT Letter identified five key concerns and made detailed observations about them.

The essence of the Claimant’s arguments on the legal merits of Ground 4, as I saw it, was as follows:

The Claimant’s arguments in support of the application for permission to amend, in essence as I saw it, were as follows

The Council and the IP respond to Ground 4 by submitting that the Court should refuse permission to amend, or alternatively should refuse permission for judicial review, or alternatively should refuse to grant judicial review (including any remedy). The essence of their arguments, as I saw it, involved three lines of opposition. The first line of opposition concerns promptness and procedural rigour. The Claimant and her representatives failed to act with appropriate promptness in raising the new ground for judicial review. No complaint is made about any passage of time prior to 18 May 2022. But promptness and standards of procedural rigour, in a case fixed for hearing on 9 June 2022, called for far greater proactivity. The Claimant’s representatives ought, very promptly after 18 May 2020, to have alerted the Council and the IP to the development and concern that had arisen. That would have accelerated investigation as to what had happened regarding the LWT Letter. It would have given full and fair warning. There is no reason why the Claimant’s representatives could not have taken that course. Counsel had the letter from 19 May 2022. It was known that the Claimant’s skeleton argument was due on 27 May 2022 and the Council and IP skeleton arguments on 1 June 2022. Even when Counsel came to draft the Claimant’s skeleton argument it must been known, at the very latest during the day on 27 May 2022, that it was now intended that there be an application to amend the judicial review grounds to include Ground 4. But no letter was written or email sent. Instead, the Claimant’s skeleton argument was simply filed and served at 16:01 on Friday, 27 May 2022. Only on reading the contents would it be seen (page 2) that an application was going to be made to amend the grounds. It was entirely unsatisfactory the application to amend to be dealt with in that unheralded way. And even then, the LWT Letter was not provided. Entirely unsurprisingly, the new ground and application to rely on it were strongly resisted in the skeleton arguments filed on Wednesday 1 June 2022 by the Council and the IP. It was only on that day that an application to amend the grounds was made and the LWT Letter provided. Even if a further investigation had been underway with LWT, those investigations could and should have been pursued with promptness after 18 May 2022, and a proper investigation necessarily involved the Council. Moreover, on 27 May 2022 Mr Harwood QC was able to say that an application to amend the grounds was going to be put forward and was able to identify in the skeleton argument what the new Ground 4 was to be. This puts beyond doubt that an application for permission to amend could and should have been made, at the very latest, on Friday 27 May 2022. The lack of promptness undermines the proper and fair preparation by the parties for the hearing. It jeopardised the hearing. There is no excuse. In the first judicial review proceedings, permission to amend to include Old Ground 7 was refused on the basis of a lack of promptness and unreasonable delay. In all the circumstances, the same fate should befall new Ground 4. Permission to amend, or alternatively permission for judicial review, should be refused on grounds of lack of promptness.

The second line of opposition concerns the absence of a ‘trigger’ for the duty to ‘have regard’ to the LWT Letter. It is as follows. The Council’s Guide made clear that any substantive “comment” about a planning application communicated by the “online” route would be acknowledged and reviewed. In this case, the “online comment” did not make any substantive point. It was the subject of an automated email receipt. It was also the subject of an automated standard form letter. Since it contained no point of substance it can have ‘triggered’ no duty. It referred to a “letter”. But it was and remained a matter for LWT whether it submitted a letter. That had to be done in one of the ways set out in the Guide. The LWT Letter was sent only by email, and only to the “planning-PA” email address. That is not the email address given in the Guide. It was an inactive email address. Far from providing an acknowledgement or receipt, it did the opposite. It generated an automated ‘bounce-back’ email. LWT received that ‘bounce-back’. There was never any acknowledgment or receipt of the LWT Letter, sent to the wrong email address and only “cc’d” to the right one. The Claimant’s amended pleaded case clearly contends that the Council acknowledged the LWT Letter, provided by email. That is not what happened. What actually happened was that there were two acknowledgements of the online comment, and no acknowledgement of the emailed letter. It is unfortunate if LWT misappreciated the acknowledgements. It is true that the letter to the “planning-PA” email address was “cc’d” to the “planning” email inbox. That is regrettable. The Guide clearly envisages, and was reasonably operated so as to receive, comments “sent” to that address. There was no unlawfulness or unfairness in the Council’s internal email (outlook) arrangements gathering only direct email traffic, and diverting “cc” email traffic. It was not difficult for LWT to adhere to the Guide. LWT could have made sure, having been alerted by the ‘bounce-back’ email. It was not for the Council to ‘chase up’ whether there was a letter received as a “cc” email, by trawling through that “cc” email traffic. In these circumstances, LWT Letter was not a response whose existence was discovered at the time, by the Council or its officers; nor whose existence was anticipated by them; nor could reasonably have been discovered or anticipated. In those circumstances, no “have regard” duty could be ‘triggered’: see R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 (2003) 1 P & CR 19 at §124. To these points can be added the fact that there was no follow-up by LWT including when there was no mention of the LWT Letter in the published OR for the August 2020 meeting, nor again the published NOR for the June 2021 meeting

The third line of opposition is that there is in any event no ‘material’ public law breach. The failure to “have regard” to material considerations, in the form of the substantive comments made in the LWT Letter, was not a ‘vitiating’ flaw in the making of the decision at the meeting on 29 June 2021. The substantive contents of the LWT Letter can be examined alongside the contents of the NOR. (I interpose that I will return to that exercise below.) The Court is also assisted by a witness statement from Mr Robinson. There is no point of substance in the “observations” LWT was making, which was not actively considered and properly addressed in the decision-making as to whether to grant planning permission and, if so, on what appropriate planning conditions. There was no ‘material’ failure to ‘have regard’ to any relevant or material consideration. That is the case, notwithstanding that officers and Members did not appreciate that LWT was adding its ‘voice’ in relation to the 5 ‘headline issues’ discussed in the LWT Letter; which unlike the TCS letter was not in the public comments’ packs provided to Committee Members (Old Ground 3). The HL:NSD test in section 31(2A) of the Senior Courts Act 1981 (First Judgment §§155-157), which the Court is duty bound to consider including in relation to permission for judicial review, is clearly satisfied. If the LWT Letter and its contents had been identified and addressed in the NOR, it is not “possible that the Members would have concluded that the IP ought to re-consider the height and scale of the proposed development, and submit a more acceptable proposal” (cf. First Judgment §157) nor that the outcome, for the Claimant or for anyone else, would have been substantially or significantly different in any other way. The Court should refuse permission to amend on the basis of the lack of viability of Ground 4 (cf. First Judgment §15), or alternatively refuse permission for judicial review or refuse the substantive claim for judicial review on grounds of lack of ‘materiality’, or pursuant to the statutory HL: NSD test.

I propose to address these three lines of opposition to Ground 4 in reverse order. I start with ‘materiality’. I need to set the scene. In the LWT Letter, the position adopted by LWT was that there was “not yet enough information provided to determine the application as it stands”. Five “Headline Issues” were raised:

I will seek now to encapsulate what the LWT Letter was saying in relation to each headline issue, together with the expansion. In doing so, I have in mind that LWT has confirmed to the Claimant’s representatives, in a recent email, that it still has the same concerns which it was expressing in the LWT Letter. Here, then, is an encapsulation of those concerns, as expressed in the LWT Letter:

It is I think helpful to give two illustrative reference points at this stage. First, by way of an illustrative encapsulation of aspects of the IP’s position, there is this taken from the IP’s second and updated Ecological Technical Note (17 June 2021):

I turn to the contents of the NOR. In the NOR, Dulwich and Sydenham Hill Woods were recognised as the closest and most significant of the sites of importance for nature conservation (NOR §759). Members were told that officers had assessed – in light of the confirmation from the ERM, including that proposed mitigation measures were appropriate – that the application was acceptable with regard to ecology and biodiversity. The NOR set out the response of the ERM (NOR §§106-116). It told Members that the ERM had confirmed (NOR §771) that the proposed development was acceptable with regard to impact on ecology and biodiversity, subject to appropriate planning conditions being imposed. The range of ecological initiatives and mitigation measures proposed for the scheme were set out (NOR §768). The NOR referred to the pond habitat-suitability index assessment (NOR §760) and the study recording species (including bat roosts) within 2 km of the Site (NOR §§761-763). The NOR described the initiatives and measures addressing tree removal, tree planting, the creation of deadwood piles, the creation of a rain garden, new areas of wildflower planting, the creation of a boundary hedge, tree bird boxes, building bird boxes, mounted bat boxes, and a swift call systems (NOR §768). Against the backcloth, I turn to these specific topics:

In the light of all of this, I can return to ‘materiality’ and the failure to have regard to the LWT Letter. The primary decision-making function in this case does not belong to the judicial review court, or to planning officers, but to Committee Members. Having said that, the judicial review court does have the duty to consider the ‘materiality’ of a claimed public law breach of duty. At common law, there is an inevitability test, asking whether the Court is satisfied that the outcome would inevitably have been the same, had there been discharge rather than the default of the public law duty. There is a statutory overlay, in the form of the HL:NSD test. Circumspection is called for, as was seen in the First Judgment at §157. Looking at the position objectively, and in light of the points which I have identified, I have been quite unable to identify any point of substance which was not carefully and conscientiously addressed, and convincingly answered, in the NOR. Where I would agree with the Claimant is that what was missing for Members, the Claimant and objectors was the fact that LWT – with its status and specialist role – was registering these concerns in relation to points which were under consideration. One way of putting it is that the chorus was missing an important voice. Knowledge of the fact of LWT’s voice would have been reflected in the writing of the NOR. It could have empowered objectors. It could have been referenced by the Claimant when she spoke at the meeting. This is a real, practical consequence. But, in my judgment, it could not have made a difference to the outcome: the grant of planning permission, with the identified planning conditions. My degree of confidence in that conclusion – looking at the position objectively and addressing questions which I am duty-bound to address – crosses the common law threshold of inevitability. In those circumstances Ground 4 would also necessarily fail by reference to the statutory overlay of the HL:NSD test, which conventional wisdom treats as being a lower threshold. I have regard, but with caution and so only by way of a cross-check – given that he is the planning officer and not the decision-maker, and given the risk of subconscious distortion – to the fact that Mr Robinson’s witness statement tells me, accompanied by a statement of truth, that he does not for his part consider the LWT Letter to contain any point of substance which was overlooked or could have made a difference to officers’ assessment. In those circumstances Ground 4 cannot succeed on its legal merits. Since this is a “rolled-up” hearing and since the Court has a statutory duty to apply the HL:NSD test at the permission stage where invoked, the logically sound outcome is that I would refuse permission for judicial review on this ground even if I were allowing the application for permission to amend. This conclusion is fatal to Ground 4, but I will address the other issues on their independent legal merits, as I saw them.

I deal next with the second line of opposition (§56 above): the ‘trigger’ for the “due regard” duty. I think there was a series of unfortunate events in and after March 2020. (1) LWT’s substantive response in the LWT Letter (16 March 2020) was not straightforwardly sent, by email, to the correct (“planning”) email address, clearly identified in the Guide. Even when a ‘bounceback’ email was received from the “planning-PA” email address, it was not sent again to that correct address. LWT relied instead on having used the email “cc” function. (2) Although the Council’s Guide gave the “planning” email address, and although the “planning-PA” in-box was programmed to send the bounceback email which was sent to LWT and received by LWT, the Guide and bounceback email did not state – as they could have done – that emails cc’d to “planning” would not be read. (3) LWT – understandably but, it transpires, incorrectly – treated the two acknowledgements (16 and 20 March 2020) as acknowledging the letter which made substantive points (the LWT Letter) rather than the online submission which did not. (4) When online submissions were being gathered and substantive responses considered, LWT’s non-substantive online submission did not precipitate an enquiry within the Council, through searches of email in-boxes, or with LWT, to track down whether a letter had indeed been provided. (5) Notwithstanding the significance to LWT of the proposed development, and the transparency in the publication of the OR and NOR where it was unmentioned (and other responses were summarised), LWT did not follow the matter up. (6) Notwithstanding the ascertainable role which LWT has in relation to Sydenham Hill Wood, the importance of the development, and the transparency in the publication of the OR and NOR where LWT was unmentioned (and other responses were summarised), the Claimant and RSG did not follow up with LWT to ask (as eventually happened in May 2022) what position LWT took. With hindsight – which cannot govern any legal analysis – all of this could be done differently.

The question for me to consider is whether, in all the circumstances, there was the receipt by the Council of a set of representations, in a manner which triggered a duty to have regard to them. Mr Harwood QC’s argument has failed to persuade me that there was such a triggering receipt. The “planning-PA” email address was a non-functional inbox. Those who sent emails to it received a bounceback, as did LWT. On the evidence before the Court, the “planning” in-box receives 400 “direct” emails on a daily basis and, as a result of that volume of traffic, arrangements had been made not to monitor “cc” and “bcc” emails, it being not considered “feasible” to do so “given the volume of email traffic”. In my judgment, Mr Robinson as the planning officer was not, in all the circumstances, in a position where he ought reasonably to have become aware of the LWT letter: cf. Kides at §§124-125. It would have been straightforward to comply with the Council’s published Guide by sending an email direct to the email address there given, not by sending an email to the wrong email address and hoping that a “cc” would be sufficient: cf. R (Rainbird) v TowerHamlets LBC [2018] EWHC 657 (Admin) at §39.

There is another point. Mr Harwood QC did not disagree that – in light of the very belated introduction of Ground 4 – it is appropriate that the Claimant be held to the way it is put in the amended pleading. The amended, pleaded case contends as follows: that LWT “submitted representations to the Council” in the form of the 6-page LWT Letter; that the Council responded to the LWT Letter on 23 March 2020 with the “standard form acknowledgement” which told LWT that its “submission would be considered”; and the Council failed to have regard to the LWT Letter “which it was bound to consider and had promised to do so”. That analysis fails on the evidence. The standard form acknowledgement was sent in response to the online-comment. There was no “promise” to consider the LWT Letter.

Finally, I will set out what I thought about the first line of opposition (§55 above). I have referred to the appropriateness of holding Mr Harwood QC to his re-pleaded case, in light of the enquiries he says were necessitated for precision in pleading. But I would not have refused permission to amend to advance Ground 4 on grounds of lack of promptness, unreasonable delay or lack of procedural rigour. I do think mistakes were made by the Claimant’s team. Knowing that the hearing was imminent on 9 June 2022, and having received the LWT letter on 18 May 2022 (Claimant and solicitors) and 19 May 2022 (Counsel), the point about whether it was received and considered could and should have been raised in correspondence. That way, it could be investigated by the Claimant’s team and by the Council in parallel. That would have been likely to have illuminated, more speedily, the position relating to emails and acknowledgements which could have impacted on the shape of the pleading. When the Claimant’s skeleton argument was written and submitted on 27 May 2022, the Council and IP legal teams should have been alerted, directly and specifically, to the fact that a new judicial review ground was going to be raised and that they were going to face an application to amend the grounds for judicial review, to advance it. That was known on 27 May 2022. There could have been the filing of a formal application on that day. At the very least, there could have been an email communication from solicitors to solicitors, or from Counsel to Counsel, to alert them to the fact that a new ground was now being advanced. I think that was another mistake. It is really not satisfactory to leave parties to read a skeleton argument and to find, within it, a reference to a proposal to revise the pleading, and add a ground. Particularly when a hearing is so close at hand and the new points so obviously cause for investigation. These were mistakes. The complaints about them are justified. And that is not ‘hindsight’.

But I would not have refused permission to amend because of these mistakes. We all make mistakes. In the event, both the Council and the IP were able speedily to deal with the matter. And, unlike Old Ground 7 (First Judgment §§19-20), dealing with this new ground on its legal merits did not mean an adjournment. Supplementary skeletons were filed on 6 June 2022 (Council) and 7 June 2022 (IP). Mr Robinson’s witness statement was filed (6 June 2022), responding to what had happened in March 2020 under the arrangements for receiving and acknowledging responses, and responding to and making observations about the contents of the LWT Letter. I examined at the hearing with all Counsel whether ventilation of the new Ground 4 would in fairness call for an adjournment. In the event, all Counsel were agreed that it did not. I reverted to this point when announcing that I would be reserving my judgment, giving the Council and the IP the opportunity, if they wished, to provide any further evidential response in writing. That was declined as being unnecessary. I was and remain satisfied that no adjournment was called for. To their credit, everyone was able to take the new Ground 4 in their stride, and we were able to address it head-on. In all the circumstances, having regard to the interests of justice, I would have granted permission to amend. It is not the first time that points have arisen about communications relating to this development (cf. Old Grounds 1-3). There was, ultimately, no prejudice and no question of adjournment. The Claimant had only very recently been alerted. Planning officers had been in ignorance. Questions arose about the Councils’ own arrangements. I would have wanted to deal with the newly pleaded ground on its legal merits. That is what I have done.

For the reasons which I have given, this claim for judicial review fails. The circulation of this judgment as a confidential draft was intended to enable me to deal here with consequential matters including resolving any contested matter. The terms of the Order as to disposal were agreed, reflecting the outcome for the various Grounds described in the judgment, and an Order that the Claimant pay the Council’s costs summarily assessed at £5,000. That left permission to appeal (PTA). Mr Harwood QC applies for PTA on Grounds 1 and 4. His ground of appeal on Ground 1 is: “The judge erred in law and fact in in considering that the error in respect of optimum viable use in the NOR, with the subsequent references to viability, was not one which was sufficiently significant to amount to taking into account an erroneous and immaterial matter. That statement at the heart of the conclusion and repeated at the meeting was sufficiently critical.” I cannot accept that there is a real prospect of success on appeal on that ground of appeal. My analysis of Ground 1 does not turn on whether NOR §873 mattered but what it meant (on which I do also not see a real prospect of success). The grounds of appeal on Ground 4 are that I erred on the legal merits because: (i) the LWT Letter was received at the Council’s published email address, albeit cc’d, the Council never having communicated that cc emails would be ignored (“a matter of some wider interest”); and (ii) the LWT Letter could have made a difference to outcome (because a major and respected participant managing a proximate site was raising weighty new or newly-contentious issues which the Committee needed to consider) and my contrary conclusion impermissibly enters forbidden territory evaluating unknowable matters. I can see no real prospect of success on point (ii), which is dispositive. Like the Council, the IP communicated that it resists PTA but asked (at 09:44 on 8.7.22) for an extension (from 10:00 on 8.7.22 to 10:00 on 11.7.22) to respond to the (2-page) application for PTA (08:54 on 8.7.22). The draft judgment had been circulated at 10:00 on 5.7.22 and the application should have been shared earlier in the week. But 10:00 on 11.7.22 was excessive and unrealistic: that was the very date and time known to have been scheduled for handing down a judgment known to be intended to deal with consequential matters; these were brief submissions on very familiar matters. I considered all the communications (mid-afternoon on 8.7.22) and decided to deal with typos, the order and PTA; not to defer hand-down; nor to hold over PTA; with no prejudice to the IP.