Wakil (t/a Orya Textiles) & Orsv London Borough of Hammersmith and Fulham

A planning authority must have regard to every material consideration, but may rationally give a material consideration no weight. This applies to supplementary planning guidance referred to in a development-plan policy. A proposal may comply with the development plan even where such guidance is not applied, provided the authority assesses the plan fairly as a whole. A later version of national policy requires reconsideration only where it is capable of materially affecting the decision. An environmental statement need contain only information reasonably required to assess likely significant effects. Speculation about uncertain affordable housing or un demonstrated cumulative effects is insufficient.

Shopkeepers adjacent to Shepherd’s Bush Market challenged the Council’s outline planning permission for Orion’s mixed-use redevelopment. They alleged that the Council had unlawfully disregarded a supplementary planning document, failed to reconsider the application after publication of the final National Planning Policy Framework, and accepted an inadequate environmental statement.

The court considered the statutory duties under the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004, and the environmental impact assessment regulations.

1. Ground 1 dismissed. Sections 70(2) of the Town and Country Planning Act 1990 and 38(6) of the Planning and Compulsory Purchase Act 2004 require the decision-maker to have regard to material considerations and give priority to the development plan. The authority must first assess whether the proposal accords with the plan as a whole and then consider whether other material considerations indicate a different outcome.
2. The Council was entitled to treat the supplementary planning document as material but give it no weight while its validity was under challenge. The document had not thereby become immaterial. Policy WCOA 3 was not dependent upon the continuing existence or application of the supplementary planning document. The Council could assess the proposal against the policy’s objectives and the remainder of the development plan. Its conclusion that the development complied with the plan was a reasonable planning judgment.
3. Ground 2 dismissed. The publication of the final National Planning Policy Framework did not automatically require reconsideration. Applying R. (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, R. (Dry) v West Oxfordshire District Council [2010] EWCA Civ 1143 and R. (Hinds) v Blackpool Borough Council [2012] EWCA Civ 466, reconsideration is required only where the new factor might realistically have affected the outcome. No material difference was shown between the draft and final policy in the circumstances of this application.
4. Ground 4 refused. Under regulations 2(1) and 3(4) and Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the environmental statement had to contain information reasonably required to assess likely significant effects. The assessment adequately addressed indirect, secondary and cumulative effects. Affordable housing was uncertain and would not increase the maximum number of dwellings; its possible later introduction did not require speculative assessment at outline stage. The other projects relied upon had not been shown to create effects requiring assessment.
5. Permission to apply for judicial review was granted on grounds 1 and 2 but refused on ground 4. The claim was dismissed.

This was a first-instance judicial review. The judgment records an earlier related decision, in which R. (Wakil and others) v Hammersmith and Fulham London Borough Council [2012] EWHC 1411 (QB) quashed the Council’s supplementary planning document.