Wakil (t/a Orya Textiles) & Ors, R (on the application of) v London Borough of Hammersmith & Fulham

A planning document must be characterised according to its substance, not merely its title. Where it relates to part of a local planning authority’s area, identifies that area as one of significant change or special conservation, and contains relevant authority policies, it is an Area Action Plan and therefore a development plan document. It must undergo the statutory procedures applicable to such documents.

A document setting the framework for future development consent may require strategic environmental assessment. The authority must at least make the statutory determination whether significant environmental effects are likely. Consultation must be undertaken fairly and conscientiously, but an earlier defect may become insignificant where later consultation gives affected persons a sufficient opportunity to express their views.

The claimants owned or occupied trading premises on Goldhawk Road adjoining Shepherd’s Bush Market. They challenged the defendant local planning authority’s adoption on 27 October 2010 of a document described as a supplementary planning document for the regeneration of the market and surrounding area.

The challenge alleged defects in consultation, conformity with the unitary development plan, the document’s characterisation as an SPD rather than an Area Action Plan, failure to undertake sustainability appraisal or strategic environmental assessment, and breach of the duty under section 71 of the Race Relations Act 1976.

1. Disposition. The decision to adopt the planning document was quashed.
2. Consultation. The authority’s failure to include the Goldhawk Road businesses in an earlier opinion survey was a procedural failing. However, by the time of the adoption decision, the claimants had received ample opportunities to communicate their views, which had been properly recorded and analysed. Applying R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, the defect had been reduced to insignificance and did not invalidate the decision. The later consultation was fair and effective, and the Cabinet’s earlier preparatory decision did not show a closed mind.
3. Conformity. The document conformed with UDP policy SBTC3, which supported retention and improvement of the market. Extending the regeneration guidance to adjoining land did not place it in conflict with that policy.
4. Characterisation. Following the approach in Tesco Stores Ltd v Dundee City Council [2012] UKSC13, whether the document satisfied the statutory conditions for an Area Action Plan was a question for the court, involving application of facts to legal requirements, rather than review solely on Wednesbury grounds. Considering the document as a whole, it identified Shepherd’s Bush Market as an area of significant change and contained relevant policies. It was therefore an Area Action Plan and a development plan document. Its adoption without the required independent-examination procedure was unlawful.
5. Environmental assessment. As a development plan document, the document required sustainability appraisal under section 19(5)(a) of the Planning and Compulsory Purchase Act 2004. Independently of its classification, it set the framework for future development consent and fell within Regulation 5(2) of the Environmental Assessment of Plans and Programmes Regulations 2004. The authority was consequently required to make a Regulation 9(1) determination about likely significant environmental effects. It failed to do so. The reasoning in Inter Environment Brussels ASBL v Region of Brussels EU Case C-567/10 supported treating plans governed by national procedures as required for the purposes of the Directive.
6. Equality and remedy. The equality impact assessment was full and conscientious. Relief was not withheld for delay. In respect of the environmental-assessment ground, withholding relief was unavailable under R (Berky) v Newport City Council [2012] EWCA Civ 378; the domestic procedural defect likewise did not justify refusal of relief.

First-instance judicial review in the Administrative Court. Permission had previously been granted by Mr Justice Lindblom; no appellate decision is stated.