THE SPITALFIELDS HISTORIC BUILDING TRUST (R on the application of) v LONDON BOROUGH OF TOWER HAMLETS

By this application for judicial review, the Spitalfields Historic Building Trust (“the Claimant”) challenges the decision dated 10 November 2021 of the London Borough of Tower Hamlets (“the Defendant”) to grant Old Truman Brewery Limited (“the Interested Party”) planning permission for the redevelopment of the Old Truman Brewery site at Brick Lane and Woodseer Street, London E1 (“the Decision”). Following a resolution of the Defendant’s Development Committee (“the Development Committee”) at its meeting on 14 September 2021 (“the September Meeting”), the planning permission was granted on 10 November 2021.

The Claimant contends that the Decision was unlawful for three reasons, in summary: exclusion of Committee members from voting; prohibition of public speaking at the September Meeting; and failure to have regard to relevant policies in a draft neighbourhood plan. The grounds are set out in full at paragraph 84 below. The Defendant resists the application, supported by the Interested Party.

In May 2020 the Interested Party applied for planning permission for the redevelopment of land at the junction of Woodseer Street and Brick Lane to deliver a mixed-use scheme comprising office, retail, gym and restaurant uses (“the Application”). The Application was in respect of the following:

There were 7,051 objections to the Application, including from the Claimant, in a letter dated 7 January 2021. The principal objections included concerns about the introduction of large companies to the development, creation of a shopping mall, effect on local businesses, gentrification, community cohesion, proposed land uses on the site, impact to local character and businesses, concerns of design and scale causing harm to heritage assets, obscuring of the views of the Truman’s chimney, amenity impact to neighbouring residents including daylight and sunlight impact to Woodseer Street, and the lack of a development brief for the wider estate.

The Application was reported to the Development Committee meeting on 27 April 2021 (“the April Meeting”) with an officer recommendation for approval.

The Officer’s Report for the April Meeting (“the April Report”) ran to over 60 pages and explained that the site was part of a wider estate in the same ownership that had gradually regenerated into a creative and commercial hub, involving many small and independent businesses (paragraph 1.2). It described the area around the Application site to the south, west, north and east – in detail and in terms similar to Local Character Area B in the draft Spitalfields Neighbourhood Plan (“the Draft Plan”) (see paragraphs 76 et seq below). It summarised the representations that had been received, including the Claimant’s objection (at paragraphs 5.39 to 5.42). An objection from the East End Preservation Society was reported as an “objection on grounds of prematurity given lack of site-wide development brief and draft status of the Spitalfields Neighbourhood Plan” (paragraph 5.26).

Section 6 of the April Report identified key development plan policies in the Tower Hamlets Local Plan and the London Plan, and in particular the policies relating to design and heritage, namely the Local Plan policies S.DH1, D.DH2, S.DH3 and London Plan policies D2-9 (see paragraphs 72 to 75 below)

As regards the Draft Plan, the April Report stated (at paragraph 6.7) as follows:

The April Report contained a very detailed appraisal of the design and impact on the character and appearance of the Brick Lane and Fournier Street Conservation Area. From paragraphs 7.26 to 7.58, it addressed the design. At paragraph 7.26 it noted that the development plan policies require high-quality design that reflected local context and character and provide attractive places that safeguard, and where possible, enhance the setting of heritage sites. At paragraph 7.58, the April Report stated its “design conclusion”:

Paragraphs 7.59 to 7.84 addressed “Heritage”, stating, in particular:

In relation to the views of the Truman’s chimney, paragraph 7.76 stated:

Paragraphs 7.83 and 7.84 of the April Report stated its Heritage conclusion as follows:

In relation to the issue of impact on the local community, paragraph 7.152 stated:

In conclusion, at paragraph 7.157, the April Report explained that officers had assessed the scheme against relevant development planning policies, having regard to consultation responses and other material considerations and had concluded that it was acceptable and that planning permission should be granted, subject to appropriate conditions and a section 106 obligation. The April Report identified the section 106 obligations that should be secured. These included:

The Application was considered by the Development Committee on 27 April 2021. The meeting was held virtually under Coronavirus legislation. At that point in time, there were six members of the Development Committee. Five committee members were present at the meeting: the Chair, Councillor Abdul Mukit and Councillors Sufia Alam, Kahar Chowdhury, Leema Qureshi and Kevin Brady (who was substituting for Councillor John Pierce). Councillor Dipa Da gave apologies. She was the sixth member of the Development Committee, but no substitute was appointed in her place.

The Council’s senior planning officer presented the scheme to the Committee and summarised officers’ view on the acceptability of the design. The Committee heard oral representations from a number of parties, including Mr Alec Forshaw, on behalf of the Claimant. He raised concerns about the provision of commercial office space which he said would harm the character of Brick Lane; the lack of housing in the scheme; harm to the character and appearance of the Brick Lane Conservation Area; design; and impacts on residential amenity through noise, overlooking and loss of daylight. He referred to the impact on the view of the Truman’s chimney from south of Woodseer Street.

Committee members asked a number of questions in relation to the impact of the development on local businesses; the amount of affordable workspace; impacts on the BAME community and impacts on small and medium-sized enterprises. At the behest of members, Mr Jason Zeloof, on behalf of the Interested Party, indicated that he would be willing to explore further provision in the section 106 obligation to address some of those concerns. Councillor Brady formally proposed deferring the Application to enable officers to explore the section 106 obligation and ensure that it was more in keeping with the obligations which Mr Zeloof had indicated he was willing to explore. This was accepted.

The minutes of the April Meeting record:

The Defendant’s annual meeting on 19 May 2021 covered the Council’s constitution (“the Constitution”). The report for the meeting stated that it was considered best practice for the Council to confirm adoption of the Constitution each year at its annual meeting. The Constitution was formally adopted at that meeting on 19 May 2021. There were then some subsequent amendments and the Constitution, with those amendments, was formally adopted on 24 June 2021. The provisions of the Constitution relevant to the issues in the present case are set out in paragraphs 22 to 34 below. However those provisions had consistently been in the Defendant’s constitution for previous years; they were not new in May or June 2021.

At the meeting, the Defendant agreed the proportionality calculation for the allocation of places on non-executive committees to councillors from political groups, in accordance with the requirement of section 15 of the Local Government and Housing Act 1989 (see paragraph 65 below). The relevant officer’s report on that issue set out and reiterated the principles set out in section 15. It agreed the allocation of places and committees to the party groups and other councillors. As regards the Development Committee, there were to be a total of 7 seats, of which 6 were allocated to Labour and one was allocated to “Ungrouped”.

Further, at the May meeting, the Development Committee was freshly constituted. In a supplemental agenda the members of the Development Committee were named. The six Labour group members were Councillors Mukit, Islam, Pierce, Chowdhury, Perry and Qureshi. Of those six, Councillors Islam and Perry were new members. Councillor Pierce had not been present at the April Meeting. Three substitutes were named: Councillors Brady, Akhtar and Edgar. The latter two had not been present at the April meeting. The remaining one place allocated to “Ungrouped” was not taken up. Thus, of the five councillors who had attended the April Meeting, Councillor Alam was not re-appointed to the Development Committee and Councillor Brady remained a substitute. The other three were re-appointed.

The Constitution governs the membership, conduct and proceedings of the Council’s various committees.

Part A provides a Summary and Explanation. It explains that the Constitution sets out how the Council operates, how decisions are made and the procedures which are followed to ensure that these are efficient, transparent and accountable to local people. Section 10 deals with Regulatory and Non-Executive Committees including the Development Committee. Paragraph 1 provides that the Council will appoint the Committees set out in Part B to discharge the functions described in Part B. Paragraph 4 explains that:

Part B addresses the responsibility for functions and decision-making procedures. Section 19 paragraph 1 states:

The list of bodies then identified in section 19 of Part B includes the Development Committee (and various specified sub-committees are also included in section 19). Section 19 further explains that:

Part C of the Constitution sets out certain Codes and Protocols. Section 35 contains the Planning Code of Conduct. Paragraph 1.2 provides as follows:

Section 12 provides for “Conduct at the Committee” and states, inter alia, as follows:

Then, and significantly for present purposes, section 13 of the Code is entitled “Decision making” and provides, inter alia, as follows:

The Code of Conduct then concludes in section 17, entitled “Guidance/Procedure notes”, inter alia, as follows:

Part D of the Constitution contains Supplementary Documents including at section 53, the Executive, Committee and Partnership Procedure Rules. Part D is to be read in conjunction with Parts A to C. Those section 53 rules include “Strategic Development Committee/Development Committee - Development Procedure Rules” (“the Rules”). The Rules provide, inter alia, as follows:

Section 5 is headed “Order of Proceedings”. Paragraph 5.3 sets out the “procedure for considering each application” in seven distinct stages, culminating in “The Committee will consider the item and reach a decision”. Paragraph 5.4 of the Rules then provides:

Significantly, for present purposes, paragraph 11 of the Rules is headed “Deferrals” and provides as follows:

Section 3 of the Rules explains what is meant by “Addendum Update Reports”; namely a report published shortly before a committee meeting to update members on developments since the agenda was published (five clear working days before the meeting). Section 13 of the Rules deals with formal site visits by the Committee. Paragraph 13.2(f) provides that failure to attend such a visit does not bar a member from voting, provided that the member is satisfied that he/she is familiar with the site.

I refer to the above provisions in the Constitution at paragraph 13.4 of the Planning Code of Conduct and paragraph 11.4 of the Rules compendiously as the “Deferred Meeting voting rule”. These provisions are relevant to Ground 1 below. Paragraphs 11.1 to 11.3 of the Rules are of particular relevance to Ground 2 below.

The Application was considered again at the Development Committee meeting on 14 September 2021. Events leading up to the September Meeting were as follows.

By letter dated 3 September 2021 the Defendant notified those that had previously made representations that “the Development Committee will consider this application at their meeting to be held on 14 September 2021”. The covering email stated that the committee notification letter “explains how to register to speak at this meeting”. In fact the letter did not do this, nor mention the fact that there would be no public speaking allowed. The Claimant received this notification.

On or about 6 September 2021, formal Notice of the Meeting (including the agenda and accompanying papers) were sent out and published. The Notice for the meeting was headed “Development Committee”. It identified the Chair as Councillor Mukit and the “Members” as Councillors Chowdhury, Perry and Qureshi with “3 Vacancies”. It further identified “substitute Members” as Councillors Brady, Akhtar and Edgar. The Notice further stated:

The Agenda for the meeting is headed “Development Committee”. Item 2 was to confirm the minutes of the meeting of “the Development Committee” held in August. It included at Item 3, “Recommendations and Procedure for Hearing Objections and Meeting Guidance” and, at Item 4, “Deferred Items” being a reference to the Application. Each agenda item then cross-referred to supporting papers and reports. The supporting paper for Item 3 included the statement “Speaking is not normally allowed on deferred items or applications which are not for decision by the Committee”; and further that, at meetings where public speaking is allowed, only two objectors might do so on a “first come first served basis” and for three minutes each.

In relation to Item 4, there were two reports. The first report, advising the Committee of planning applications that had been considered at previous meetings and currently stood deferred, identified the Application as the only relevant deferred application and stated, inter alia:

The second report was the planning officers’ substantive report on the Application (“the September Report”).

Following the resolution at the April Meeting, Council officers engaged in a period of negotiation with the Interested Party. Further terms were agreed for inclusion in the section 106 obligation and a report was prepared to inform the meeting of 14 September 2021 (“the September Report”). It recommended approval.

The September Report was a seven-page report with the April Report appended at Appendix 1 and with a new three-page Appendix 2 setting out definitions for the purposes of the section 106 Agreement. It noted a further 425 objections.

The September Report did not provide a full reappraisal of the proposed development, but rather focused on the reasons for the deferral. It stated, inter alia, as follows:

In section 3, the September Report continued as follows:

On 3 and 9 September 2021, requests to speak at the meeting were made by two objectors who had spoken at the April Meeting: Saif Osmani, Chair of the Development Committee at Spitalfields Housing Association and Marian Goodrich, a local resident. Those requests were rejected by officers because public speaking had already taken place at the April Meeting. Each was informed that, instead, written representations could and should be made by 13 September 2021. In her evidence Ms Palin, the Claimant’s senior administrator, stated that the Claimant would have taken the opportunity to speak at the September Meeting had it been given the opportunity to do so. On instructions, Mr Harwood QC indicated that, by that time, the Claimant knew that public speaking was not going to be allowed at the September Meeting.

The Claimant submitted a further written objection by letter dated 10 September 2021, stating:

By the time of the September Meeting, officers also provided a short 2-page update report, addressing the further representations received since 9 September, including a summary of the further representations received from the Claimant.

By the September Meeting, the coronavirus legislation had expired and so committee members had to be physically present at the meeting to take part formally. Councillor Qureshi appeared remotely but she did not vote. (It appears she was self-isolating). The members in the meeting room were Councillors Mukit, Chowdhury and Brady. Councillor Perry gave her apologies. The substitutes, Councillors Akhtar and Edgar were not present. The meeting was also broadcast and the recording is published.

Introducing the guidance under Item 3, Mr Buckenham, a council officer, emphasised “there’s only one item this evening which is the deferred item with no public speaking”. Then, turning to Item 4, the Chair announced at the start of the Application as follows:

The requirement that members had to have been present at the April Meeting meant that Councillor Perry was not allowed to take part. Councillor Qureshi was not able to attend in person. Neither of the two substitutes (Councillors Akhtar and Edgar) were allowed to take part, so it was not possible to substitute for Councillors Perry and Qureshi. As a result, those that took part were Councillors Mukit, Brady and Chowdhury.

The Minutes of the September Meeting record, under Item 4, that “Update report was tabled”. It is not clear whether this is a reference to the September Report or the 2-page update report. The Minutes record positive decisions made in respect of Items 2 and 3. In relation to Item 4, the Minutes record, inter alia, as follows:

The meeting was recorded. The Claimant has prepared an unofficial transcript. Agenda Item 3 was considered and discussed briefly.

Under Item 4, Councillor Mukit expressly asked Mr Buckenham, the Development Manager, Planning Services, about the Draft Plan:

The planning permission was issued on 10 November 2021.

A pre-action protocol letter was sent on behalf of the Claimant on 2 December 2021, enclosing a draft Statement of Facts and Grounds which dealt with the present Ground 1. The Defendant responded with a detailed pre-action response dated 16 December 2021 and the Interested Party provided draft Summary Grounds of Resistance. In their Summary Grounds of Resistance, both the Defendant and the Interested Party contended that permission should be refused because the true nature of the claim is a challenge to the Constitution which was adopted on 24 June 2021 and thus the challenge was well out of time. Lang J granted permission on 26 January 2022. In her decision, she did not expressly address that issue of promptness.

Section 101 of the Local Government Act 1972 (“LGA 1972”) provides, inter alia, as follows:

Section 102 provides, so far as material, as follows:

Section 106 provides, inter alia, as follows:

Schedule 12 to LGA 1972 provides, inter alia, as follows:

Under Chapter 5 of the Local Government Act 2000 (“LGA 2000”) section 9P provides as follows:

Section 9Q LGA 2000 provides as follows:

Section 21(10) LGA 2000 provides:

The Local Government Act 2000 (Constitutions) (England) Direction 2000 (“the Constitutions Direction”) contains relevant guidance from the Secretary of State. By paragraph 3 n, the information that must be contained in the Constitution includes a description of the roles of any committee or sub-committees appointed in accordance with s.101 LGA 1972, including the membership, terms of reference and functions of the authority’s committees or sub-committees and “any rules governing the conduct and proceedings of meetings of those committees and sub-committees, whether specified in the authority’s standing orders or otherwise” (emphasis added).

Section 13 of the Local Government and Housing Act 1989 (“LGHA 1989”) addresses voting rights and provides as follows:

Section 15 LGHA 1989, under the heading “Political balance on committees etc”, provides, inter alia, as follows:

Schedule 1 to LGHA 1989 provides, inter alia, as follows:

Section 31 of the Localism Act 2011 (“LA 2011”) makes further provision in relation to voting rights, as follows:

Section 106 of the Local Government Finance Act 1992 (“LGFA 1992”) also makes provision in relation to voting rights, as follows:

Section 70 of the Town and Country Planning Act 1990 (“TCPA”) provides as follows:

Section 31 of the Senior Courts Act 1981 (“SCA 1981”) provides, inter alia, as follows:

There are three planning policy documents relevant to these proceedings: the London Plan; the Tower Hamlets Local Plan and the draft Spitalfields Neighbourhood Plan.

The London Plan provides a number of policies. Policy D3 “Optimising site capacity through design-led approach” states as follows:

Policy D4 “Delivering good design” provides, inter alia, as follows:

Policy D8 “Public Realm” provides, inter alia, as follows:

The Tower Hamlets Local Plan 2031 provides, inter alia, as follows:

As at the time of the September Meeting, the Draft Plan had been subject to examination and was ready for referendum. It was therefore “a post-examination draft neighbourhood development plan” within the meaning of s.70(2)(aza) TCPA 1990.

Section 3 of the Draft Plan is headed “Vision and Objectives” and provides:

The policies of the Draft Plan which are said to be material to the Application include SPITAL1, 2 and 7.

Policy SPITAL1 (“Protecting the physical fabric of Spitalfields”) states in particular:

Policy SPITAL2 (“Land Use, Activities and Frontages”) provides, inter alia, as follows:

Policy SPITAL7 (“Affordable Workspace”) states as follows:

Appendix A to the Draft Plan is entitled “Local Character Area Appraisals”. Within that Appendix, The Old Truman Brewery is in Local Character Area B, the assessment of which states, inter alia, as follows:

Local Character Area F is South Brick Lane. The northern boundary of that area is Woodseer Street and the south side of Woodseer Street is in Area F. It provides as follows:

The Claimant puts forward three grounds of challenge, as follows:

The Claimant submits as follows:

The Claimant relies upon R(Ware) v Neath Port Talbot County Borough Council [2007] EWHC 913 (Admin) at §38, [2007] EWCA Civ 1359; R(Etherton) v Hastings Borough Council [2009] EWHC 235 (Admin) and, in particular, In the matter of Hartlands (NI) Ltd [2021] NIQB 94.

Finally, the Claimant submits that the claim was not out of time. Time runs from the Decision, granting planning permission: see R(Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593.

The Defendant’s case and that of the Interested Party are broadly aligned. Their submissions can be summarised as follows:

In respect of the first two reasons, reliance is placed upon R(Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) and R(Blacker) v Chelmsford City Council [2021] EWHC 3285 (Admin). In respect of the third reason, reliance is placed upon R v Flintshire CC ex parte Armstrong-Braun [2001] EWCA Civ 345. The cases of Ware and Etherton are distinguishable: neither involved the court assessing the constitution of a local authority. Hartland is distinguishable on the facts. It was not contended there that the relevant provision changed the composition of the relevant committee. Moreover the wording of paragraph 42 of Schedule 12 LGA 1972 (“proceedings and business”) is wider that that in the relevant Northern Ireland legislative provision (“procedure”).

Further or alternatively, the real nature of this claim is a challenge to the Constitution, and any judicial review challenge to the Constitution is out of time. Relief should therefore be refused on the ground of undue delay pursuant to section 31(6)(b) SCA 1981. Time started to run from 24 June 2021 (or 19 May 2021), the date that the Constitution was adopted. At that time, the Claimant was pursuing strong objections to the Application, consideration of which had been deferred; and thus was affected by the provisions of which it now complains, because it was inevitable that the Application would be considered pursuant to those provisions - that is the time from which the rules could have applied to them: see R(Badmus) v Secretary of State for the Home Department [2020] 1 WLR 4609. Granting relief would be detrimental to good administration. The fact that the issue of delay was raised at the permission stage does not mean that it cannot be addressed now, since it was not addressed earlier: R(Bokrosova) v Lambeth London Borough Council [2016] PTSR 355.

I address first the substantive issue, before turning to the question of delay.

The Deferred Meeting Voting Rule

In R v Flintshire County Council ex parte Armstrong-Braun, supra, the Court of Appeal held, as a first issue, that a council standing order which prevented any councillor from putting a matter on the agenda for a council meeting unless he had the support of at least one other councillor, was a standing order “for the regulation of [the council’s] proceedings and business” within paragraph 42 Schedule 12 LGA 1972. Schiemann LJ (at §§17 and 18) endorsed the view that it was a provision which set out “rules as to how matters were placed on the agenda for subsequent discussion and voting”, and rejected an argument that the power to prohibit proceedings went beyond a power to regulate proceedings.

The wider issue in the case was whether that standing order was nevertheless outside the policy and objects of LGA 1972. In particular, the second issue was whether it was possible for a standing order which falls within the wording of paragraph 42 nevertheless to be quashed as falling outside the policy and objects of LGA 1972 or as being otherwise legally objectionable. In answering that question in the affirmative, Sedley LJ said:

In R(Ware) v Neath Port Talbot County Borough Council, supra, the claimant challenged the grant of planning permission. The issue was whether the decision of certain members of the planning committee not to vote on the application could be impugned on the basis of wrong advice given to them by council officers. Those officers had advised that, first, their attendance at a previous meeting with objectors might raise the spectre of a complaint to the ombudsman, and secondly, to be legally secure, the councillor should have attended a site visit if they were to vote. Collins J upheld the claim. As to the first aspect, the officers were wrong to raise the spectre of a complaint. It could only have put pressure on the councillors/members As to the site visit advice, he found (at §38) that, as a matter of principle, it is difficult to see that a committee can bind its members by making a decision that those who have been unable to make a site visit cannot participate in the ultimate decision. It must be for the individual member to decide whether on the facts the fact that he had not been to the site should disqualify him. The Court of Appeal overturned Collins J’s decision on the basis that in fact officers had not told or pressurised members not to vote: see §§35 to 41. At §§40 and 41 Mummery LJ stated:

In R(Etherton) v Hastings Borough Council, supra, the claimant challenged the grant of planning permission on the basis of a failure to follow the provisions of the local authority’s planning protocol. The protocol - a guidance document which formed part of the council’s constitution - made detailed provision for site visits and for the position of members of the committee who did not attend a site visit. Such members were expected not to vote at a subsequent meeting unless they could confirm that they had sufficient relevant knowledge of the site and they should consult with the case officer regarding alternative means of acquiring sufficient knowledge. Four of the six members of the committee who voted on the application had not been on the site visit. The claimant contended that there was no guarantee that those four members had “sufficient relevant knowledge” to assess the application and to be able to participate. Sir Michael Harrison dismissed the claim, finding that the fact that the four stated that they “knew the site well” was sufficient relevant knowledge. There was no failure to comply with the protocol provision. Under those provisions, the council was entitled to leave it to members who had not been on a site visit to decide for themselves whether they had sufficient information to be able to vote.

This was a case dealing with a provision in the council’s constitution and dealing with the possible restriction of the ability of members of the planning committee to vote. It did not address issues of membership of the committee or a sub-committee or Schedule 12 paragraph 42 LGA 1972. There was no contention, as in the present case, that the function of determining the application had ceased to lie with all the members of the planning committee.

In R(Bridgerow Ltd) v Cheshire West and Chester Borough Council, supra, under the local authority’s constitution, applications for renewal of sexual entertainment venue licences were to be determined by a panel of three members drawn from the licensing committee on a politically proportionate basis. The claimant’s application was refused by a panel consisting of 12 members of the full licensing committee. The claimant’s claim that that committee had not been properly constituted and thus that the decision was unlawful was upheld. The provision in the Constitution for a specially constituted committee or panel, limiting the number of members of the committee able to consider an application, was lawful and applied.

In the constitution, the terms of reference provided expressly for three different constitutions of the licensing committee, depending on the nature of the application in question. One of those provided for a panel “comprising three members drawn from the full committee on a politically proportionate basis” and another for three members drawn from the full committee on an ad hoc basis. The Defendant and the Interested Party rely upon Bridgerow as an example of a provision in a constitution which restricts consideration of a relevant application to certain councillors only and where it is not “reasonably practicable” to make provision for political balance. Thus, they say, the legislation on political balance did not make the constitutional provisions in the present case unlawful. However in my judgment, Bridgerow does not assist in the present case. That was a case where the constitution expressly provided for differently constituted panels of the licensing committee, some politically balanced and some not.

In the matter of Hartlands (NI) Ltd, supra, in the High Court in Northern Ireland, is closest to the present case on the facts and issues. The applicant, a development company, challenged the decision of Derry City and Strabane District Council to refuse planning permission. Scoffield J quashed the decision because it was based on a material error of law. By reason of its Planning Committee Protocol, certain councillors who were members of the committee were not permitted to vote on the outcome of the application. That provision was ultra vires.

The Council’s Planning Committee Protocol provided that members of the planning committee not present at an earlier “pre-determination hearing” could not vote on the subsequent planning decision. A pre-determination hearing is a procedure specific to Northern Ireland. At the pre-determination hearing, 12 council members attended. The application was then considered at a planning committee meeting on 29 July 2020. A number of councillors followed the Planning Committee Protocol and/or advice based on it and therefore did not vote on the application at that meeting. The remaining councillors voted by 4-3 to refuse the application. The applicant contended that the operation of the Planning Committee Protocol was potentially crucial to the outcome (§12). Its first ground was that it challenged the Planning Committee Protocol - the “voting issue”.

At §§78 to 87, the judge referred to the relevant Northern Ireland statutory provisions. First, the Local Government Act (Northern Ireland) 2014 (“LGA(NI) 2014” or “the 2014 Act”) makes provision in relation to committees and sub-committees similar to those in LGA 1972, including provision as to party representation. By virtue of section 39 every decision of a committee, such as the Council’s Planning Committee, had to be taken by a simple majority (meaning more than half of the votes of the members “present and voting”): §81.

Secondly, the Planning Act (Northern Ireland) 2011 (“PA(NI) 2011” or “the 2011 Act”) sets out a detailed statutory code for the exercise of planning functions. Section 30 PA(NI) 2011 provides for “pre-determination hearings”, under which, in certain circumstances, the applicant is given the opportunity of appearing before, and being heard by, a committee of the council. Section 30(2) PA(NI) 2011 (set out at §86) addresses “the procedures to be used in respect of a pre-determination hearing”. It provides:

At §87, the judge commented as follows:

At §95 to 99 the judge set out the nature of the “voting issue”:

At §§110 to 128 he addressed the voting issue. In particular he stated:

At §§113 to 121, the judge went on to consider the cases of Ware, Etherton and Armstrong-Braun, taking the view that his approach was broadly consistent with those cases, which, he considered, emphasise the personal responsibility of councillors as regards their decision whether to vote or not. As regards Ware, the judge took the view that it was implicit in Mummery LJ’s observations at §§40 and 41 (set out at paragraph 94 above) that, if the councillors had been advised that they could not vote or been precluded from so doing, that would have been unlawful. The judge cited Sir Michael Harrison’s approval in Etherton of Collins J’s observations in Ware at §38. As to Armstrong-Braun, significantly, the judge characterised the provision in that case as one to “limit the right of an individual elected councillor to exercise his local mandate” (at §118), and went on to rely upon the observations of Sedley LJ at §53 (at §120). At §122 he cited the observations of Sir John Donaldson MR in R v Waltham Forest LBC ex parte Baxter [1988] QC 419 that each councillor has “a personal and individual duty to consider the issues involved and to reach his own decision whether to vote for or against the resolution or to abstain”.The judge continued:

At §§126 and 127, the judge then went on to consider the position, if he was wrong about the “vires” of the Council to disentitle councillors from voting as a matter of principle. On that basis, he would not have upheld the applicant’s argument that the Protocol was irrational or disproportionate. He held that the purpose behind the Protocol provisions – to ensure that those participating in the later vote were fully informed and to encourage participation by councillors in the pre-determination hearing - was clear and rational and not unlawful.

The judge stated his conclusions at §§128 and 130:

The following points emerge from the Hartlands case. The judge found that under LGA(NI) 2014 a councillor or committee member had an implicit right to vote (§111). The right can be excluded by clear legislative provision. The rule in the council’s Code of Conduct excluding the right to vote deprived members of that right. The issue was whether section 30(2) PA(NI) 2011, on its true construction, allowed the council to restrict the right of members to vote at a planning committee meeting. By its terms, and in particular by the use of the word “procedures”, section 30(2) did not cover the restriction on the right to vote in the Code of Conduct. The rule in the Code of Conduct was thus ultra vires. However, had it not been ultra vires, such a rule was not irrational. It was within the Council’s powers to advise members not to vote if they had not attended the pre-determination meeting. I make two further points. First, unlike in the present case, it was not contended that the rule had the effect of changing the membership of the planning committee. Secondly, section 37(1) LGA(NI) 2014 Act is in terms very similar to those in Schedule 12 paragraph 42 LGA 1972. However this provision appears not to have been relied on in Hartlands.

Finally, in R(Blacker) v Chelmsford City Council [2021] EWHC 3285 (Admin), the council’s constitution contained a provision for deferred consideration where the planning committee wanted to make a decision contrary to officer’s recommendation and a restriction on voting at that deferred meeting, in terms similar to the Deferred Meeting voting rule in the present case. However there was no challenge to that restriction on voting. (Rather the challenge was to the committee’s change of mind at the second, deferred, meeting). Thornton J observed (at §38) that a failure to comply with a constitution renders the resultant decision unlawful and liable to be quashed and further that the council’s constitution “is to be interpreted objectively according to the natural and ordinary meaning of the words used in context and according to common sense”.

In my judgment, the starting point of the analysis is that every member of a local authority council or committee has a prima facie entitlement to vote at a relevant meeting. In this regard I consider that the analysis of Scoffield J in Hartland at §111 applies with equal force to the LGA 1972. It is supported by Armstrong-Braunat §53 (although at §54 Sedley LJ doubted the characterisation as a “right” to vote). Whilst there is no direct express statutory provision stating this entitlement, it can be inferred both from certain positive provisions (Sch 12, para. 39 LGA 1972; Sch 1 para. 4(b), LGHA 1989) and from the “negative” legislative provisions which expressly exclude the right to vote in certain specified circumstances (see s.13 LGHA 1989; s.106 LGFA 1972; s.21(10) and Sch A1, LGA 2000 and s.31 LA 2011). This entitlement arises from primary legislation. Secondly, I also agree with Scoffield J that any restriction of the entitlement to vote requires statutory authority; as is the case, for example, in the “exclusionary” legislative provisions above.

The question then is whether the restriction on voting in this case is sufficiently clearly authorised by statute and/or the Constitution. (It is accepted by the Claimant that the restriction is not Wednesbury unreasonable). The Defendant and the Interested Party contend that it is, for two reasons: (1) the Constitution establishes the composition of the committee which considers deferred applications and (2) the Deferred Meeting voting rule is authorised by Schedule 12 paragraph 42 LGA 1972. I will address each in turn.

By way of background, membership of councils and committees will change over time. Elections take place and, in any event, committees are altered on an annual basis or for other reasons. Furthermore, provision is made for substitutes, so that if a committee member cannot attend any particular meeting, a nominated substitute can properly attend. It follows that where a first meeting defers consideration of an application to a later meeting (perhaps some months later), it is possible that, by the time of the second meeting, the committee members who attended the first meeting will no longer be members and there will be new committee members who did not attend the first meeting. Regardless of the Deferred Meeting voting rule, the same councillors will not necessarily be able to consider the application at the two meetings. The application of the Deferred Meeting voting rule will necessarily exclude any new members; it may also lead to the second meeting being inquorate.

Some of this occurred in the present case. By the time of the September Meeting, two of the six members as at the date of the April Meeting (one of whom attended) were no longer members and Ms Perry was a new member who could not have attended the April Meeting. Further, if Ms Perry (or one of the substitutes) had attended the September Meeting, he or she would have had available to him both Reports, the Officers’ presentation, and if need be, could have had available a transcript of the April Meeting. However, unlike the position in Hartlands, there is no direct evidence that, but for the Deferred Meeting voting rule, the excluded councillors would have voted.

I do not accept the Defendant’s contentions either that in the present case, by the Constitution, it has changed the composition of the Development Committee for deferred applications only, or that it has established a separate sub-committee under Part B, section 19 of the Constitution and s.101 LGA 1972 to deal only with deferred applications.

First, whilst I accept that the Defendant would be entitled, under the Constitution, to establish a separate committee or sub-committee to consider deferred applications, it did not do so in the present case. The relevant provisions establishing the Deferred Meeting voting rule are, by their terms, rules (or provisions) relating to participation and voting by Committee members, and not rules as to committee membership. The provisions do not, in terms, purport to change the membership of the Development Committee, nor to establish a sub-committee. The Defendant’s argument is based on what they say is the effect of the Deferred Meeting voting rule i.e a change of membership has been achieved by a different route. In my judgment that is not sufficient to establish a new committee. The Constitution itself sets out the Defendant’s committees and sub-committees. There is no reference to a “deferred applications” committee or sub-committee. Whilst I accept that there is strictly no bar to a committee establishing an additional sub-committee on an ad hoc basis, nevertheless where it intends to do so, there should be some positive act (whether by resolution or otherwise) which itself clearly purports to do so. Further the Constitution contains “no description of the role of” such a deferred applications committee or sub-committee (as required by paragraph 3 n of the Constitutions Direction). Moreover, the reference to “the Committee” in the second sentence of paragraph 11.4 of the Rule (dealing with quoracy) only makes sense if it is a reference to the full Development Committee. No other “committee” has any relevant rule on quoracy.

That no change of membership, or creation of a sub-committee, took place or indeed was intended, is borne out by the facts. The September Meeting was in terms a meeting of the Development Committee and its members were stated to be all the members of the Committee at that time (and not just those who attended the April Meeting). There is no suggestion that the September Meeting was a meeting of a Development Committee with a changed membership or of a sub-committee of the Development Committee. The Defendant’s position at the time was that only members present at the previous meeting would be able to vote. When the Chair gave his explanation at the time (see paragraph 49 above), he was not referring to a different sub-committee or different membership of the Committee. He was clearly referring to a restriction on the ability of certain members of one and the same Committee to vote.

Secondly, the suggested change of membership of the Development Committee or creation of a sub-committee did not take account of the duty (upon the Defendant and/or the Development Committee) to comply with requirements of proportionate party representation in s.15 LGHA 1989. Section 15(4)(b) provides for a duty to give effect to proportionality principles in section 15(5) only “so far as reasonably practicable”. However, first, no consideration was in fact given to whether this was practicable or not. Secondly, section 15(1) in any event imposes a duty to review the representation of different political groups, whether or not the section 15(5) principles can be practicably given effect to. This did not happen in the present case.

Thirdly, the Defendant and the Interested Party put forward their arguments here in the alternative - changed composition of the Development Committee or creation of a separate sub-committee – and with varying emphasis over the course of the argument. However it has to be one or the other: either the Constitution changed the membership of the Development Committee or it created a separate sub-committee. The fact that they did not clearly identify what it was that the Constitution provided for is indicative of the artificiality of their overall contention.

It is common ground that, at least, paragraph 11.4 of the Rules is a “standing order” within the meaning of Schedule 12 paragraph 42 (Footnote: ¹).

The question then is whether paragraph 11.4 is a standing order “for the regulation of [the] proceedings and business” of the Development Committee.

In Hartlands, Scoffield J concluded at §112 (although not without some hesitation) that a similar rule depriving a person of a right to vote was not a matter of “procedure” within the meaning of that term in section 30 PA(NI) 2011. In his view “procedure” related to the practical or administrative arrangements for, and conduct of, (in that case) a hearing. These included attendance, venue, timing and speaking rights. At §125, he expanded by reference to examples in the relevant departmental publications. Voting, in contrast, was a matter of substantive decision making.

In my judgment, as a matter of construction, “regulation of [the] proceedings and business” (of the committee) is wider than [arranging] “procedure” (as in Hartlands). “Business” is the substantive matters considered by the committee; and “proceedings” refers to the whole of the conduct of that business by the committee. Together, “regulation of the proceedings and business” addresses not just the practical or administrative arrangements for the conduct of a meeting or hearing, but “what” business the committee does as a whole and the manner in which it does it. Schedule 12 paragraph 42 can cover matters of substance, as well as matters of procedure: see Armstrong-Braun at §§16 to 17 above and, further, Scoffield J’s characterisation of the rule in that case (see paragraph 106 above). The reference in paragraph 3 n of the Constitutions Direct to “rules governing conduct and proceedings of meetings” suggests that “proceedings” is wider than pure procedure, as interpreted by Scoffield J.

Paragraph 11.4 is found in the Rules which themselves regulate, and are intended to regulate, the Development Committee’s proceedings. Other provisions in the Rules clearly “regulate the proceedings”. Paragraph 1.1 describes them compendiously as “rules applying to all meetings of the Development Committee” i.e. they “regulate the Committee’s proceedings”. Paragraph 1.2 states that the Rules (as a whole) “provide processes and procedures”. The 14 sections which follow can all be said to carry out this function.

Section 5, headed “Order of Proceedings”, clearly does this as a whole. The stages in paragraph 5.3 are “procedure” in the narrowest sense (as Scoffield J had in mind). Paragraph 5.4 in particular (set out in paragraph 31 above) is pertinent. It is in two parts. The discretion to vary the procedure in the first part falls within “regulation of the proceedings”. The second part places a restriction on voting, if the member is not present throughout the whole of the Committee’s consideration (i.e. at a particular meeting). In my judgment, this is a rule regulating the proceedings of the meeting in question (and not just because it falls within section 5 under that heading). Thus, the exclusion of the entitlement to vote in paragraph 5.4 is covered by paragraph 42 of Schedule 12. (There was no suggestion in Hartlands that a similar provision in Northern Ireland was ultra vires: see Hartlands §91). In my judgment, the exclusion of the right to vote at a deferred meeting in paragraph 11.4 serves the same purpose and is no different in kind. It equally regulates the proceedings at such a meeting.

A rule on quoracy is a rule which regulates “the proceedings and business” of a committee. As specifically envisaged, the effect of the Deferred Meeting voting rule in the first part of paragraph 11.4 might be to render the Committee considering a deferred application inquorate. The second sentence of paragraph 11.4 guards against that possibility by providing that, in that event, the application will be reconsidered afresh by the full Committee. In this way, this aspect of paragraph 11.4 - a rule relating to quoracy consequential upon a voting rule - is part of the regulation of the proceedings and business of the Development Committee; and supports the conclusion that paragraph 11.4 in its entirety regulates the proceedings and business.

The judge’s decision in Hartlands was finely balanced (see §112) and, at §123, he recognised that, in other circumstances, a standing order might permit disqualification. In my view, the wider and different wording in Schedule 12 paragraph 42 tips the balance the other way, in favour of the lawfulness of the Deferred Meeting voting rule.

In effect, where consideration of a planning application is deferred, the two meetings form part of a single decision-making process. The local authority is entitled, by provision in its Constitution, to say that, as far as possible, members should be present for all of that process in order to vote. In such case, that provision falls within the power in paragraph 42 of Schedule 12, as constituting the regulation of “proceedings and business” of the committee.

For these reasons, I conclude that the Deferred Meeting voting rule and, in particular, paragraph 11.4 of the Rules “regulates the proceedings and business of the Committee” and thus falls within the Defendant’s powers in paragraph 42 of Schedule 12 to the LGA 1972. It is therefore not unlawful and Ground 1 fails.

Had I concluded that the Deferred Meeting voting rule was unlawful, I would have concluded that the Claimant’s challenge had been brought in time and that relief did not fall to be denied under s.31(6) SCA 1981. I can state my reasons briefly.

First, the fact that delay was raised, but not ruled upon, at the permission stage, does not prevent the Court from considering the issue under s.31(6) SCA 1981 at the substantive hearing: R(Bokrosova) v Lambeth London Borough Council, supra, at §§92 to 96.

Secondly, “undue delay” is to be assessed by reference to failure to act promptly in CPR 54.5: see Badmus supra, at §59. In order to decide when grounds first arose (within CPR 54.5(5)), it is necessary to identify what it is that is sought to be judicially reviewed: see Badmus at §§60 (and 77). In the present case, the statement of facts and grounds identifies the measure being challenged as the grant of planning permission, and not the Deferred Meeting voting rule in the Constitution. Time therefore ran from the date of the Decision: see Burkett, supra. Even if the rule in the Constitution is also being challenged, it can fairly be said that both the rule and the grant of planning permission are being challenged, and the Claimant was entitled to wait until the later decision for time to commence running: see Burkett at §§38 and 42. Further and alternatively, even if time should run from the date that the Claimant was “affected by” the rule in the Constitution (Badmus §§77 and 78), on the facts of the present case that gives rise to too many uncertainties in seeking to identify the relevant date i.e. 19 May 2021, 24 June 2021, or even earlier, say in April 2021 (given the fact that the previous operative constitution contained the same rule): see Burkett supra, per Lord Steyn at §§49-50.

The Claimant submits that the case fell within paragraph 11.2 of the Rules (rather than paragraph 11.1) and thus public speaking should have been allowed. Applying those two rules: there was substantive new information being brought before the Committee; the application was not deferred for a site meeting or clarification of an issue; the Committee was not updated by means of an addendum update report; the application did not proceed to the next meeting; the deferral was for a “more substantive reason”; it involved renegotiating part of the proposal; a substantial fresh report was prepared; the public wanted to comment on the new material. It was Wednesbury unreasonable to place the application in the “Deferred Items” part of the agenda. The Defendant’s correspondence with other objectors on 9/10 September 2021 refusing public speaking did not set out any consideration of whether speaking should be allowed and did not apply paragraph 11.2. Further the provision in the first report for Item 4 referring to public speaking being allowed “where … the recommendation is significantly altered” is inconsistent with, and not required by, paragraph 11.2.Therefore the Defendant acted unlawfully (in the sense of Wednesbury unreasonableness) in preventing the public from speaking at the September Meeting.

The Claimant does not need to establish prejudice. But in any event the Claimant and others would have spoken at the meeting if it had been allowed. As regards section 31(2A) SCA 1981, the outcome might well have been different: see R(Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin) at §§26 and 27.

The Defendant submits as follows:

In addition to the points made by the Defendant, the Interested Party submits that the Defendant was entitled, in its wide discretion, not to allow public speaking at the September Meeting. There is no statutory right for members of the public to speak at Development Committee meetings - only a discretion, subject to rules adopted. Here, the relevant rules are broadly worded and grant the Committee a substantial discretion. There is no hard line between the situations in paragraphs 11.1 and 11.2 respectively.

In submissions which appeared to cover both prejudice and section 31(2A), the Claimant did not complain nor raise this issue in pre-action protocol correspondence. In any event, even if it had been allowed to speak at the meeting, there is no evidence to suggest that its oral representations would have materially added to the representations it had already made in its written objections of 7 January 2021 and 10 September 2021 and in its oral representations at the April Meeting. In any event, the Claimant might not have been able to speak, since only two objectors could do so, and two had already asked to speak.

I have been referred in particular to R(Adlard) v Secretary of State for the Environment [2002] EWCA Civ 735 at §§13 to 32; R(Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin) at §§26 and 27; R(Embleton Parish Council & Ainsley) v Northumberland County Council [2013] EWHC 3631 at §150; R(Matthews & Urmston) v City of York Council [2018] EWHC 2102 at §§27 to 28 and Blacker, supra, at §§52 to 54. From these authorities I derive the following propositions:

The Claimant’s case is put squarely on the basis of breach of paragraph 11.2 of the Rules; rather than breach of the requirement of procedural fairness under the general law. However I am not satisfied that, in refusing to allow public speaking at the September Meeting, the Defendant was in breach of the Rules, and in particular of paragraph 11.2.

Paragraphs 11.1 and 11.2 (set out at paragraph 32 above), when considered together, do not provide for a clear delineation between when public speaking will, and will not, be permitted. They are not drafted precisely and do not fall to be interpreted as if in a statute. First, both paragraphs refer to the position “generally”, thus indicating an element of discretion in the Defendant’s approach. That reference does not particularly assist either party’s position. In paragraph 11.1, its inclusion suggests that, in an exceptional case, even where there is no substantive new information, there might be public speaking. On the other hand, paragraph 11.2 suggests that, in an exceptional case, even where there is a more substantive reason, it would not be appropriate for the matter to be considered in the “Planning Applications for Decision” part of the agenda and for there to be public speaking. In any event, this only emphasises the conclusion that there are no hard and fast rules.

Secondly, there is an ambiguity in paragraph 11.2 where it refers both to “a fresh report” and a “new full report”. I assume that the two are intended to be synonymous; and that the former in fact refers to the latter i.e. public speaking will be permitted when there is a new full report. If the two terms are intended to refer to different types of report, then strictly under the terms of paragraph 11.2, it is only in the case of a “new full report” that public speaking is permitted. But this type of analysis only goes to demonstrate the difficulties in seeking to construe the words of paragraphs 11.1 and 11.2 in a legalistic manner.

The facts of the present case do not fall clearly into either paragraph 11.1 or paragraph 11.2. Rather they fall somewhere between the two cases there described. On the one hand, the deferral was to enable the affordable workspace strategy and independent retail strategy to be developed in the context of the section 106 agreement. This did involve “substantive new information” and was more than “clarification of an issue” (and so outside paragraph 11.1); it amounted to “a more substantive reason”, and so within paragraph 11.2. The Application was not determined “at the next meeting” (albeit that is only a “usual” approach under paragraph 11.1). On the other hand, the matter was placed in the “Deferred, Adjourned and Outstanding Items” part of the agenda (paragraph 11.1), and not in the “Planning Applications for Decisions” part (paragraph 11.2).

Moreover, as described in paragraphs 42 and 43 above, the September Report does not fit neatly within the type of report envisaged either in paragraph 11.1 or in paragraph 11.2. It was not “a new full report” as described in paragraph 11.2. It was an additional report addressing only the matters relating to the deferral. On the other hand, it was not strictly an “addendum update report” (referred to in paragraph 11.1) as that term is used in the rules. The minutes of the April Meeting provided for a “supplementary report”. If the “update report” referred to in the minutes of the September Meeting is a reference to the September Report, then that is somewhat closer to the type of report envisaged by paragraph 11.1. It was not Wednesbury unreasonable to place the Application in the “Deferred items” part of the agenda for that Meeting.

I therefore conclude that the April deferral of the Application does not fall clearly within paragraph 11.2 of the Rules, and, even if it equally does not fall within paragraph 11.1, the Defendant was not in breach of its Rules by not permitting public speaking at the September Meeting. Since it fell within neither paragraph, it was a matter for the Defendant’s general discretion whether to permit public speaking.

In the present case, I do not consider that the Defendant’s exercise of that general discretion not to permit public speaking was unreasonable or otherwise unlawful. The Claimant had already made written and oral representations in advance of the decision at the April Meeting. It had further been given, and taken, the opportunity to make detailed written representations in response to the September Report and in advance of the September Meeting (and in particular the proposed amendments to the planning obligations). Much of those representations was directed to matters other than those proposed amendments. Rather the Claimant repeated and expanded upon the case it put before the Committee in April.

As regards prejudice, the Claimant’s case is put on the basis that, given the breach of paragraph 11.2, prejudice is not relevant. Since I have found no such breach, I do not need to consider the issue of prejudice to the Claimant. Even if prejudice had been relevant, I would have found that in this case it is not established, for much the same reasons as set out in paragraph 145 above. Even if public speaking had been permitted, I am not satisfied that the Claimant would have made oral representations or if they had done so, its position would have improved. Unlike the other two objectors, the Claimant did not express a wish to speak at the September Meeting and did not complain when the agenda was published on 6 September. Moreover, whilst in her witness statement, Ms Palin said that the Claimant would have spoken at the September Meeting, there is no evidence that it would have made points additional to those it had already made in April and in its September written representations. Further, given the limited number of speakers allowed, it is far from clear that it would have been able to speak. As regards losing “the opportunity to persuade” (identified in Kelly), that case involved the loss of any opportunity to address the planning committee orally on the application; it was not a “deferred” application. In the present case, the Claimant had already spoken publicly on the Application (as well as making its written objections).

As regards section 31(2A), there is a good deal of overlap between this and the issue of prejudice. In view of my conclusions above, it does not arise as a separate consideration. If, contrary to the foregoing, I had found that the Defendant had acted unlawfully, I would not have refused relief on this ground. Public speaking by the other two objectors (at least) might have led to a different outcome.

For the foregoing reasons, Ground 2 fails.

The Claimant submits that the Defendant failed to have regard to relevant policies in the Draft Plan, despite recognising that it was a material consideration which carried significant weight. By the time of the September Meeting significant weight was, correctly, attached to the Draft Plan. Statute provided that it was a material consideration. However, the Committee were not informed of its relevant policies. The September Report solely referred to SPITAL7. The April Report (unlike its treatment of the Local Plan and the London Plan) made only limited reference to the Draft Plan. It did not refer to SPITAL1 or SPITAL2 nor to the Local Character Areas which they seek to protect. Those policies and Local Character Areas were material and so the Defendant failed to have regard to material considerations. These added to the Local Plan and London Plan policies, in particular to protect local character areas including views identified in them.

As regards views, the Local Plan does not go to the level of detail of the Draft Plan in identifying specific local views. It does not seek to protect the Local Character Areas in the Draft Plan. Decisions affecting the area are to be taken with regard to Local Character Area assessments. What they are doing is not merely descriptive. Views are to be protected. The Report should have addressed the views which were potentially affected, namely views BVE 01, 02, and 03 and FVE 06 referred to at B8 and F6, and shown in Figure 4.2, as set out in the Draft Plan.

The Defendant’s case and that of the Interested Party are broadly aligned. They submit, first, that the Defendant did not fail to have regard to the substance of the policies in SPITAL1 and SPITAL2. Officers are not required to address each and every policy relevant to the application. It is sufficient that matters relevant to the proper application of the policies are identified and assessed as a matter of substance: see R(Lensbury Ltd) v Richmond upon Thames [2016] EWCA Civ 814 and West Oxfordshire DC v Secretary of State for Housing Communities and Local Government [2018] EWHC 3065. Both Officer’s Reports referred to the Draft Plan. The Draft Plan policies raised by the Claimant, which are said not to have been considered, were considered in substance and raised similar issues to those covered in other policies that were expressly considered. SPITAL1 and SPITAL2 are generically worded policies relating to design and heritage. They are not materially different from the equivalent provisions in the Local Plan, the London Plan or the NPPF such that they required separate consideration. In any event the character of the areas concerned and the views within them were extensively covered in the design and heritage sections of the April Report. The April Report had close regard to these issues in paragraphs 7.26 to 7.58 and 7.59 to 7.84. In the light of this detailed consideration, the mere fact that the Defendant did not in terms refer to SPITAL1 or SPITAL2 cannot be said to be unlawful. Referring to the new draft policies would have made no difference to the tenor of the April Report: see R v Mendip District Council ex parte Fabre [2017] PTSR 1113. It is up to the planning officer’s expertise to assess how much information should be included in his or her report. In any event the committee members at the September Meeting were aware of, and closely involved in, the Draft Plan. The minutes and the transcript record that the members asked about its status and the extent to which the proposals complied with it; they were advised that they could give it full weight and that the proposals accorded with the Draft Plan.

Secondly, even if the Defendant failed to have regard to the draft policies (which is denied), reference to the policies in the Draft Plan would have made no difference to the outcome and relief should be refused pursuant to section 31(2A) SCA 1981. Even if the Officer’s Reports had specifically mentioned further particular provisions of SPITAL1 or SPITAL2, it is highly likely that the outcome would not have been substantially different.

In R(Lensbury Ltd) v Richmond upon Thames, supra, the claimant challenged the grant of planning permissions, submitting that the council failed to comply with its duty under s.38(6) Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) by failing to have proper regard to the provisions in the development plan. The judge at first instance dismissed the application. The Court of Appeal upheld the first ground of appeal. At §6 of his judgment, Sales LJ endorsed the following statements made by Patterson J in Tiviot Way Investments v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) at §§27 and 30:

Ground (iii) of the appeal was that the Council had failed properly to take a range of other policies into account, specifically policies 7.4, CP10, CP11, DM OS 11 and DM DC1. Sales LJ stated at §39:

R v Mendip District Council ex parte Fabre, supra, concerned a policy in an emerging Structure Plan which had been subject to examination. Although the policy was mentioned in an objector’s letter, officers wrongly advised the Committee that the policy “cannot be given weight” (at 1123C). Sullivan J held that the report should have said that the policy could be given limited weight. However, in rejecting this ground, Sullivan J held (see 1123F) that the policy did not raise any issue not covered in other policies which were referred to, and that referring to the new draft policy would have made no material difference to the tenor of the report (even though the emerging Plan seemed to introduce a somewhat more restrictive policy).

In West Oxfordshire DC v Secretary of State for Housing Communities and Local Government, supra, one of the grounds of challenge was that the Inspector’s decision letter failed to have regard to a material consideration, namely the Emerging Local Plan in breach of the requirements of s.38(6) PCPA 2004. The applicant contended that the Emerging Local Plan was more restrictive than the adopted local plan and that, by not specifically applying the provision in the Emerging Local Plan or in failing to give significant weight to it, the Inspector failed to accord sufficient significance. David Elvin QC rejected the argument as being based on a legalistic approach to the language used without properly considering whether any difference of language had any material effect. “It is necessary to bear in mind the Court of Appeal’s strictures against excessive legalism which applies to the construction of policy as well as to any other planning issue”. He concluded that the Adopted Local Plan policies fairly read were in effect the same as the Emerging Local Plan.

The Draft Plan itself was referred to both in the April Report and in the September Report, and at the September Meeting.

First, as regards the April Report, whilst it does not refer in terms to SPITAL1 and SPITAL2, it does make a detailed assessment of the relevant design and heritage matters (both in the executive summary, and in paragraphs 7.26 to 7.84): see paragraphs 9 to 12 above. Significantly, within this assessment the Report takes full account of the Brick Lane and Fournier Street Conservation Area and its existing Appraisal (“the CA Appraisal”) (paragraphs 7.60, 7.65, 7.76, 7.83 and 7.84 and 7.152). It concluded that the proposed development was in accordance with the relevant policies in the London Plan and the Local Plan. These policies effectively cover the similar, and generically worded, provisions of SPITAL1 and SPITAL2 relating to design and heritage. Thus, the April Report contained a detailed assessment of the substance of those provisions.

Secondly, by the time of the September Report, there was a statutory duty to have regard to the Draft Plan (as expressly recognised by that Report itself and in the September Meeting). That Report expressly took into account the Draft Plan in the context of affordable workspace. Moreover the September Report also attached the April Report itself, which addressed in detail the issue of design and heritage (as explained above).

Thirdly, by the time of the September Meeting, officers, councillors and objectors were all fully aware of the Draft Plan.

Fourthly, and importantly, at the September Meeting itself, the Draft Plan was given specific and express consideration: see Item 4 of the Minutes and extracts from the transcript (at paragraphs 51 and 53 above). At the meeting, and in response to a suggestion that the decision might be deferred until the Draft Plan was approved, the councillors were advised by Mr Buckenham that the proposals were consistent with the Draft Plan (which would not change).

Finally, as regards Mr Harwood’s specific point in relation to views, and in particular, views of the Truman’s chimney, this was raised in the Claimant’s written and oral objections. It was addressed in paragraphs 7.65 and 7.76 of the April Report and in the subsequent update. In this regard, the relevant policy in the Draft Plan is SPITAL1 paragraph G, where the requirement is to “have regard to any impact on the local views identified in the relevant Conservation Area Appraisal and Character Area Appraisal and shown on Figure 4.2”. As regards the relevant Conservation Area Appraisal (i.e. CA Appraisal for Brick Lane/Fournier Street), the Truman’s chimney is specifically identified. Further, B7 and B8 of Local Character Area Appraisal B and F6 of Local Character Area Appraisal C identify views of the Truman’s chimney and other views relevant to the Development, which are shown on Figure 4.2: see paragraphs 82 and 83 above. Notably, B7 of Area B addresses the Truman’s chimney specifically and cross-refers to, and relies upon, what is said about the chimney in the CA Appraisal. Paragraph 7.76 of the April Report expressly refers to the consideration given to the Truman’s chimney in the CA Appraisal: see paragraph 11 above.

In my judgment, the Defendant was not under a duty to preserve existing views of the Truman’s chimney and other relevant views at all costs. First, the duty in the Draft Plan is a duty “to have regard to the impact upon” (and not “to preserve at all costs”) the relevant views. Secondly, B8 and F6 above refer to “efforts” to protect views. Thirdly, B8 refers to the fact that the Truman’s chimney is expressly addressed in the CA Appraisal. In turn, the CA Appraisal, and the Truman’s chimney’s consideration within it, were itself expressly addressed in the April Report (at paragraphs 7.60 and 7.65). The chimney was also addressed in other parts of the April Report. In these circumstances, in substance, the Defendant had regard to the impact of the development upon views of the Truman’s chimney and upon other relevant views.

For these reasons, I am satisfied that, applying the approach set out by Sales LJ in Lensbury,supra, on a fair reading of the Reports and what transpired at the September Meeting, matters relevant to the proper application of the policies in the Draft Plan were appropriately identified and assessed. Ground 3 fails.

In view of my conclusion in paragraph 164 above, this does not arise. If I had found that the Defendant had erred in law, by failing to refer expressly to SPITAL1 and SPITAL2 or specific provisions within those policies, I would have found that it was highly likely that the outcome for the Claimant would not have been substantially different (i.e. planning permission would still have been granted) and thus refused relief in any event. On the other hand, had I found that the Defendant failed to have regard to the substance of the relevant policies in SPITAL1 and SPITAL2, then I would have concluded that section 31(2A) would not have been a bar to relief.

In the light of the conclusions at paragraphs 129, 148 and 164 above, each of the three Grounds fails and the Claimant’s claim for judicial review is dismissed. I will hear the parties on the appropriate form of order and any consequential matters.

Finally I am grateful to all counsel for their assistance and for the quality of the argument placed before the Court.