Fielder & Fladgate Llp v Westminster City Council

Planning policies may establish a hierarchy requiring decision-makers to consider on-site housing, off-site housing, alternative uses and, finally, a financial contribution. Whether development is “appropriate” or “practical” under such a policy is ordinarily a matter of planning judgment, subject to review only on conventional public-law grounds.

A planning committee may assess the proposal actually before it and is not necessarily required to send an application back for redesign merely because the policy target has been miscalculated or not fully met. A failure to comply with statutory requirements to give reasons and summarise policies does not inevitably require quashing where the court is satisfied that the same decision would inevitably have been made. Appropriate relief may instead require proper reasons to be placed on the planning register.

The claimant, a firm of solicitors, brought two judicial review claims concerning planning permissions for the redevelopment of Park House near Oxford Street. The challenges alleged failure to apply Westminster planning policies concerning mixed-use development, residential accommodation and affordable housing, and failure to comply with article 22 of the Town and Country Planning (General Development Procedure Order) 1995.

The second permission was materially identical to the first, save for increased payments under a section 106 agreement. Permission was granted for the second claim at the substantive hearing. The central issues were whether the committee had lawfully applied policies CENT 3 and H 4, and what relief should follow from the admitted failure to provide a policy summary and adequate reasons for the first permission.

1. The challenges to the second planning permission failed. Policy CENT 3 imposed a hierarchical approach: on-site residential accommodation was the primary requirement; if that was not appropriate or practical, off-site accommodation, alternative uses and finally a financial contribution were to be considered. The committee had considered those stages and was entitled to conclude, as a matter of planning judgment, that additional residential accommodation and further alternative uses were not appropriate or practical.

2. The words “appropriate” and “practical” involved evaluative judgment rather than an absolute or purely mechanical test. The committee was entitled to consider the size and nature of the development, physical constraints, the quality of accommodation, financial implications and the benefits of the proposed redevelopment. The claimant had not shown that the committee’s conclusion was perverse.

3. The committee was entitled to consider the application as submitted. It was not required to send the proposal back for redesign merely because the increase in commercial floor space had initially been miscalculated, particularly where it had considered the reasons for the shortfall and the difficulty of providing further accommodation.

4. Policy H 4 required on-site affordable housing unless the relevant circumstances made that inappropriate or impractical. The committee was entitled to attach some, though limited, weight to viability evidence considered by officers even though the committee had not seen the underlying figures.

5. The first permission was affected by a failure to comply with article 22 of the Town and Country Planning (General Development Procedure Order) 1995, including the failure to provide a summary of relevant policies and proper reasons. Nevertheless, the permission was not quashed. Considering the later identical permission and the absence of any realistic prospect of a different decision, the court concluded that the same decision would inevitably have been reached.

6. Following Tratt v Horsham District Council [2007] EWHC 1485 (Admin), the purpose of requiring reasons included placing them on the planning register. The appropriate relief was therefore an order requiring proper reasons to be given and placed on the register. The first claim received that limited relief; the second claim was dismissed.