Kinsey v LB Lewisham – May 2021

May 29, 2021

High Court Judgment provides important reminder as to the consequences of failures in planning officer’s reports leading to the grant of planning permission – R(Kinsey)  v London Borough of Lewisham & Anor  [2021] EWHC 1286 (Admin) 18th May 2021.

The recent High Court decision has highlighted the importance of ensuring that officer reports leading to the grant of planning permission are complete and thorough in dealing with all of the material considerations and providing a fair and accurate representation of relevant responses, objections and representations received. The purpose of the report is  not to decide the issue, but inform members of the relevant material considerations relating to the application in a fair and balanced way without misinforming or misleading them.  Failure to do so could, as in this case, lead to a successful claim for judicial review and quashing of the planning permission.

The case concerned the grant of planning permission for demolition and redevelopment of a site to provide 110 residential units in two tower blocks and other smaller terraced buildings. The City of London Corporation had applied for planning permission on the 3rd of January 2020 and at its meeting on the 27th of August 2020 the Lewisham Borough’s planning committee resolved to grant planning permission which was issued on the 20th of November 2020.

Given the size and scale of the development involved there were a considerable number of objections, representations and consultation responses. In particular, these included the objection from the Council’s Senior Conservation Officer (SCO) due to the unacceptable impacts and harm that would be caused to the Sydenham Hill/Mount Gardens Conservation Area (CA) and the Grade II listed buildings comprised in Lamas Green and the Sydenham Hill Community Hall and Retaining Walls (LB’s). The SCO’s detailed comments and views as to the impacts on the CA and LB’s were contained in her document dated the 28th of January 2020 and her recommendation was:

“Justification

The number of units is justified by the ambition to maximise new dwelling numbers and by viability, and thus does not provide a design or heritage based clear and convincing justification for the harm to the setting of the LBs or CA. No convincingly different alternative options have been provided to demonstrate that a scheme of lower density could be viable and the scheme is driven by achieving high housing numbers.

Recommendation

I have objections due to the harm caused to the CA, the setting of listed buildings and the setting of locally listed buildings, chiefly caused by the height and position on site of the proposed buildings.

I do not consider that the harm is adequately justified by the aim for highly dense scheme or its viability.”

The planning officer had provided his summary of the application, consultation responses and recommendation that planning permission be granted for the application in his officer report which was provided to Members. His conclusions were at paragraphs 641 – 644 of his report as follows:

“641 The Proposal would provide a substantial quantum of socially rented residential units to help meet the Borough’s housing needs. This is a significant benefit to be weighed in the planning balance as the proposal will assist in addressing its housing need which is set to increase substantially under the draft London Plan housing targets.

642 The proposals reflect the principles of the highest quality design, ensuring an exemplary built environment for visitors and residents. The impacts upon heritage assets in the vicinity of the application site have been fully considered and it is concluded that less than substantial harm will be caused. The officer assessment has also identified some impacts upon occupants of neighbouring residential properties in relation to loss of light and overshadowing. However, on balance the benefits and planning merits of the scheme are considered to substantially outweigh any harm identified.

643 The proposed development would also result in the delivery of significant public realm enhancements, specifically through the delivery of the communal amenity space. Improvements to the existing highways network would also be secured by legal agreement.

644 In conclusion, the proposed development is considered to be in accordance with the relevant national planning policy guidance and development plan policies. The proposals are wholly sustainable development in accordance with the NPPF and will make an important contribution to the borough, in respect of housing supply and importantly the wider borough community. The proposals are therefore considered to be both appropriate and beneficial. Therefore, on balance, any harm arising from the proposed development is considered to be significantly outweighed by the benefits listed above.”

The claim for JR against the grant of planning permission was brought under 5 grounds (Ground 3 of the originally grounds not being pursued) which can be summarised as follows:

  • The Council failed to have regard to the harm to the CA and LB’s (Ground 1);
  • The Council failed to take into account the SCO’s objection to the scheme (Ground 2);
  • The Council failed to make background papers available (ground 4);
  • The Council’s decision was irrational as the scheme would appear above the tree canopy of Dulwich Park contrary to its own conclusions as to what would be acceptable (Ground 5);
  • The Council failed to ask the Design Review Panel to consider the planning application in breach of a legitimate expectation created by the Council in its Statement of Community Involvement (Ground 6).

With the exception of Ground 5, the claim was allowed on all the other grounds and the judgment highlights fundamental failings of the Council in dealing with matters arising from the application.

The judgment deals with ground 2 first, which concerned the adequacy of the planning officer’s report in presenting the views of the SCO to Members.

At paragraph 36 of the judgment of Mrs Justice Lang DBE referred to the case of R (Mansell) V Tonbridge & Malling BC [2019] PTSR 1452 and the summary of the principles to be applied when challenging the adequacy of an officer’s report in a claim for JR as follows:

“42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarise the law as it stands:

(1)        The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin), at paragraph 15).

(2)        The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.

(3)        Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”

Paragraph 37 continues by referring to the judgment of Sullivan J. in R v Mendip DC ex parte Fabre [2017] PTSR 1112 (at 1120B) as to the level of detail expected in an officer’s report and that its purpose is not to decide the issue but inform members of the relevant material considerations relating to the application. However, part of the officer’s functions is to assess how much information needs to be included to do this and avoid excessive and unnecessary detail.

Between paragraphs 39 – 49 of the judgment there is a consideration of the law and principles relating to the impact of planning applications on heritage assets.

The judgment then turns to the grounds of appeal and takes ground 2 first – the failure to take account of the SCO’s objection. With regard to this, between paragraphs 53 – 56, the judgment notes the thoroughness of the SCO’s document and then turns to the officer’s report. At paragraph 57, it is noted that whilst the planning officer referred to the SCO’s comments there were significant omissions and changes to them. In other words the summary did not accurately record the comments.

Moreover, paragraphs 58 – 60 of the judgment are critical of the officer report’s failure to report the SCO’s objection and reasons for it or her advice that the application provided no design or heritage based clear and convincing justification for the harm to the CA and the LB’s. This was compounded by the failure to reference the SCO’s document in the report, the Agenda or as a background paper and it was not available to Members at or before the meeting.

Against this background, in my view it is perhaps not surprising that the High Court concluded that Ground 2 should succeed because applying the principles in R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452, per Lindblom LJ, Members were materially misled on some aspects of the heritage issues, because of the withholding of the SCO’s comments from them, which could have made a difference to their assessment.

The judgment then continues to deal with the other grounds of the claim and as regards ground 6, between paragraphs 123 -129 there is a useful summary as to the law on legitimate expectation which serves as a handy reference on the issue.

Whilst it is recognised that it is a difficult task for officer’s to provide a thorough report without burdening members with unnecessary and excessive details, especially in complex cases with multiple issues, it is fundamental that the report does not misrepresent information and includes the views and recommendations of those consulted, particularly where they are the views of a senior officer within the Council. Failure to do so will expose the Council to the risk that permissions are quashed with consequent costs and delays and even ramifications for their housing land supply which may be undermined if in the case of permissions for larger developments.

A full copy of the judgment can be found here –

http://www.bailii.org/ew/cases/EWHC/Admin/2021/1286.html

Trevor Ward

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Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Town and Village Greens, Will Disputes