Lambert, R (on the application of) v Southwark

In judicial review of a planning decision, the court assesses the officer’s report in its statutory and practical context. A report need not reproduce every fact or legal principle, but it must not significantly mislead the decision-maker about material matters which remain uncorrected. A planning authority must have regard to material considerations up to the issue of the decision notice. A new consideration does not invariably require referral back to committee, but referral is required where the delegated officer knows, or ought reasonably to know, of a new factor which may materially affect the decision, unless satisfied that the authority knew of it, considered it with the application in mind, and would reach the same decision. For Schedule 2 development, environmental impact assessment is required only where the development is likely to have significant environmental effects, assessed case by case by reference to its nature, size and location.

The claimant sought judicial review of Southwark Council’s resolution to grant outline planning permission for a City Academy on Paterson Park, the planning permission issued pursuant to that resolution, and a later resolution to grant temporary planning permission for an educational facility. She alleged failures to consider relevant matters, failures to reconsider new matters arising before the decision notice, inconsistency between the resolution and the permission, and non-compliance with the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

The central issues were whether the Council had properly considered open-space policy and alternative sites, whether subsequent compensatory open-space arrangements and the temporary facility required reconsideration, whether the final permission conformed to the Council’s resolutions, and whether the development was EIA development.

1. Grounds 1–3. The claim failed on the challenges concerning relevant considerations, subsequent matters, and the conformity of the permission with the resolutions. The officer’s report accurately summarised the relevant national, regional and local open-space policies. The Development Control Committee had the relevant considerations before it, including the Canada Water alternative site, and had not been misled. Under the approach in Oxton Farms v Selby District Council, a planning report is not construed like a statute. The question is whether its overall effect, in the context of the statutory test, significantly misled the committee about material matters which remained uncorrected.
2. Under R (Kides) v South Cambridgeshire District Council, the duty under section 70(2) of the Town & Country Planning Act 1990 extends throughout the authority’s dealings with the application. The authority must have regard to material considerations known, or reasonably discoverable, before the decision notice is issued. Referral back to committee is required where the delegated officer becomes aware, or ought reasonably to become aware, of a new material consideration. Here, the later arrangements enlarged and maintained the amenity area and secured community use without altering the application site or permitted development. They were beneficial measures, not matters requiring fresh committee consideration. The temporary application was undetermined and was to be decided on its own merits.
3. The notice of 14 November 2002 conformed to the Committee’s resolution of 16 January 2002. The section 106 agreement fulfilled the further requirements imposed by that resolution. The Council’s resolutions of 27 March did not alter the terms of the outline permission, and the Mayor’s requirements were addressed in the agreement.
4. Environmental impact assessment. The proposed Academy was an urban development project within item 10(b) of Schedule 2 to the 1999 Regulations, so the Council had to consider whether it was likely to have significant environmental effects. The Council had detailed information when adopting its screening opinion. A minor error in treating paragraph A19 of Annex A to Circular 2/99 as part of Schedule 2 was immaterial. The development was not irrationally treated as unlikely to have significant environmental effects. Opposition and controversy did not themselves require an assessment. The temporary facility could not sensibly transform the project into EIA development.
5. The claim was dismissed on all grounds. Permission to appeal was refused because the proposed appeal had no real prospect of success and there was no other compelling reason for it to be heard. The order was no order for costs.

This was a first-instance judicial review. The court dismissed the claim, refused permission to appeal under CPR rule 52.3(6), and made no order for costs.