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

For the duty to consider other material considerations under section 70(2) of the Town and Country Planning Act 1990, a matter must be objectively relevant to the grant or refusal of permission. It must have some real potential to affect the decision-maker’s balance.

An advisory body’s report is not material merely because of its source or remit. Where its substantive points have already been considered through other representations and evidence, and it could not add weight or affect compliance with the development plan, failure to consider it does not make the permission unlawful.

The Council granted planning permission for redevelopment of Twickenham Railway Station. The scheme exceeded the normal height guidance in Policy DM DC3, but officers and the planning committee considered that its design justification and significant local support for its public benefits satisfied the policy’s proviso.

The claimant sought judicial review. He contended, among other matters, that the committee had failed to consider a report by the Twickenham Advisory Panel, which criticised the scheme and supported an alternative approach. The Administrative Court dismissed the claim in [2012] EWHC 3881 (Admin). Permission to appeal was confined to whether the report was a material consideration and, if so, whether the permission should be quashed.

Appeal dismissed. Richards LJ gave the judgment of the court, with which Pitchford LJ and Maurice Kay VP agreed.

1. Section 70(2) of the Town and Country Planning Act 1990 required the Council to consider matters that were materially relevant to the planning decision. A matter was material if it could carry some weight in the decision-making balance, or if there was a real possibility that considering it would produce a different conclusion. The formulations in Tesco Stores, Bolton and Kides were not materially different for this purpose.

2. The officers’ advice that the report was not material was highly unsatisfactory. The report concerned the application, was expected by officers, and should ordinarily have been summarised for the committee.

3. Nevertheless, the omission was not a breach of the statutory duty. Every substantive point in the report had already been addressed in the officers’ report, representations, or the independently verified viability evidence. The report could not have affected the committee’s assessment of the scheme’s design, viability, development-plan compliance, or the existence of significant local support for its public benefits.

4. The Panel’s advisory role did not give it the status of a statutory consultee. Its authorship did not give repeated points greater weight than they already had in the planning process. There was therefore no real possibility that the report would have tipped the balance.

5. In any event, had the report been material, the court would have refused to quash the permission in its discretion. The committee would necessarily have reached the same decision had it considered the report.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal in [2013] EWCA Civ 513.
• High Court, Administrative Court: HHJ McKenna dismissed the judicial-review claim in [2012] EWHC 3881 (Admin). Permission to appeal was granted only on the alleged failure to consider the Twickenham Advisory Panel report.