Roberts v Brent Council

In determining a planning application for temporary development, a local planning authority is not ordinarily required to assess the merits or environmental consequences of a separate, larger development that is not yet the subject of an application. The possible precedent effect of the temporary permission may nevertheless be a material consideration, including the practical consequences of establishing a use on the site and accommodating users who might later need to be relocated. The authority must guard against the temporary decision pre-empting the later application and must leave that application open for assessment on its own merits. An arguable error in limiting consideration to the temporary proposal will not justify judicial review where it could have made no realistic difference to the substance of the decision.

Brent’s planning committee granted permission for temporary school buildings on Wembley Park Sports Ground, initially accommodating up to 300 pupils. A separate application was anticipated for a permanent academy for about 1,600 pupils. Mr Roberts, representing an action group, challenged the temporary permission on the basis that the committee had wrongly disregarded the permanent scheme, particularly its possible traffic and environmental effects.

Mitting J refused permission to apply for judicial review. He distinguished the authorities on planning precedent effect relied on by Mr Roberts, which concerned the consequences of permitting similar development on other sites. The issue before the Court of Appeal was whether the temporary permission arguably had to be assessed by reference to the later permanent proposal and, if so, whether any error was material.

1. Application refused. The Court of Appeal held that the planning precedent-effect principle discussed in Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 concerns the wider consequences of permitting a particular form of development on one site for applications for similar development elsewhere. That was materially different from the proposed permanent school, which was a larger and separate development on the same site.
2. A temporary permission could nevertheless have a different kind of precedent effect. The presence of up to 300 pupils, their possible future relocation, and the establishment of the principle of school use on the site could carry some weight in a later permanent application. The committee had considered that possibility and obtained confirmation that the pupils could be redistributed if permanent permission were refused. The temporary permission therefore did not effectively pre-empt a later decision on the permanent application.
3. The committee was not obliged, as a matter of law, to examine the merits, environmental effects or traffic implications of a permanent development that was not before it and for which the necessary detailed information was unavailable. Those matters fell to be assessed if and when a proper application was made. The committee’s separation of the two applications was appropriate and preserved the objectors’ opportunity to oppose the permanent proposal.
4. Even if the committee’s approach involved an arguable error in failing to consider the broader implications of the permanent development, the error would have been immaterial. There was no realistic possibility that the substance of the assessment would have differed. The Court therefore refused permission to appeal from Mitting J’s refusal of permission to apply for judicial review. The applications for a protective costs order and a stay did not arise.

• Court of Appeal (Civil Division): refused permission to appeal against the judgment of Mitting J.
• Administrative Court, Queen’s Bench Division: Mitting J refused permission to apply for judicial review of Brent’s grant of planning permission for temporary school buildings.