Watson, R (on the application of) v London Borough of Richmond Upon Thames

In planning judicial review, a local planning authority must consider the development plan as a whole. A proposal may accord with the plan despite conflict with individual policies. A matter is legally material only where it has real importance in the context of the decision and there is a real possibility that considering it would have produced a different outcome. The weight given to a material consideration is for the decision-maker, absent perversity.

Alternative schemes will ordinarily be irrelevant where the proposal is acceptable in planning terms and causes no relevant planning harm. They may require consideration only in exceptional circumstances, and vague or insufficiently developed alternatives should receive little or no weight.

The claimant sought judicial review of the respondent local planning authority’s decision to grant Solum Regeneration Limited planning permission for the redevelopment of Twickenham Railway Station.

Permission to apply was granted on two grounds. The claimant alleged that the authority had failed to consider a report by the Twickenham Advisory Panel and an alternative scheme known as Plan B. Both matters were said to show that a policy-compliant and viable development could be achieved with reduced building heights. The central issues were whether either matter was legally material and whether the authority had unlawfully failed to take it into account.

1. The claim was dismissed. The claimant was ordered to pay the defendant’s and interested party’s costs, subject to the protective costs order and a total limit of £10,000. Permission to appeal was refused.
2. The duty to determine the application in accordance with the development plan required consideration of the plan as a whole under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990. A proposal need not comply with every relevant policy to accord with the plan as a whole. The court applied R v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) [2001] JPL 470.
3. A consideration is legally material where, viewed in context, it is sufficiently important that it would have had a real possibility of affecting the decision. The decision-maker determines the weight to be given to it, subject to the limits of legality and perversity. The court applied the principles stated in Bolton Metropolitan Borough Council v Secretary of State.
4. Alternative proposals generally need not be considered where the application proposal is acceptable in planning terms and involves no relevant planning harm. Consideration may be required only exceptionally. Inchoate or inadequately supported alternatives should receive little or no weight. The court applied Mount Cook [2003] EWCA Civ 1346.
5. The authority was entitled to conclude that the scheme accorded with the development plan as a whole, that the height policy’s proviso was satisfied, and that the design caused no unacceptable townscape harm. The TAP Report was not material merely because it came from that panel. It was not a statutory consultee, its remit did not extend to representations on this application, and it had not been sent to the officers dealing with the application. In any event, its concerns had been addressed elsewhere. Plan B had been summarised in the officer’s report, but lacked detailed cost information verifying viability. Neither ground established a legal error.

First-instance judicial review claim. Permission to appeal was refused by the High Court; the ordinary 21-day period for filing an appellant’s notice remained applicable.