England, R (on the application of) v Tower Hamlets & Ors

An officer’s report need not identify every potentially material planning policy in detail. The report is sufficient where it enables an experienced planning committee to understand the material issues, particularly where no reasonable possibility exists of an alternative form of development to which the omitted policy would apply.

Demolition which is not development does not require planning permission. A planning authority cannot lawfully refuse permission merely to preserve a building where there is no reasonable possibility that it would be preserved if permission were refused.

The claimant sought judicial review of planning permission granted by the London Borough of Tower Hamlets for a substantial housing development at Suttons Wharf. The development included demolition of a warehouse and canopy adjoining the Regent’s or Grand Union Canal.

The claimant alleged that the planning committee had not been properly directed to the London Plan’s Blue Ribbon Network policies and had been misdirected about the relevance of demolition. An interim injunction preventing demolition had initially been granted and was later discharged. The central questions were whether the officer’s report was defective and whether the demolition issue provided a lawful basis for refusing permission.

1. Claim dismissed. Permission to apply for judicial review was granted, but the hearing was treated as the substantive hearing and the claim was dismissed.
2. The failure to refer specifically to London Plan policy 4C.12 did not make the officer’s report unlawful. The officer had identified the relevant planning matters and was entitled to conclude that there was no reasonable possibility of a development falling within the policy’s priority uses. The committee was an experienced planning committee and had access to the London Plan. Officers must exercise judgment about which matters require specific attention; otherwise reports would become unnecessarily long and obscure the matters of genuine importance.
3. The omission was materially different from the treatment of policy EMP2, which directly conflicted with the proposed change from employment use to housing and therefore required specific consideration.
4. Under Town and Country Planning Act 1990, section 55(1A)(a), demolition is ordinarily a building operation, but section 55(2)(g) permits directions excluding specified demolition from development. The relevant Direction meant that demolition of the warehouse did not require planning permission. There was therefore no legal basis for an injunction preventing demolition.
5. The principle in Clyde & Co v Secretary of State for the Environment [1977] 1 WLR 926 did not assist the claimant. Whatever formulation was adopted—fair chance, balance of probabilities or reasonable possibility—the evidence showed that preservation was no more than fanciful. A refusal based solely on a desire to preserve the warehouse would not have been sustainable.
6. As to costs, the interested party was entitled to its costs of preparation for and attendance at the hearing before Newman J because the existing injunction created a sufficient risk. No order for its costs was made in relation to the substantive hearing before Collins J. The defendant received its costs, subject to legal-aid protection.

The claim began with an without-notice application for an injunction. Collins J granted interim relief on 9 June 2006, subject to an undertaking to issue judicial review proceedings. Newman J directed an expedited hearing on 13 June 2006. Collins J later discharged the injunction, granted permission, and dismissed the substantive claim.