Carnegie (On Behalf of the Oaks Action Group), R (On the Application Of) v Ealing

A planning officer’s report is read fairly as a whole. It need not enumerate every statutory test or affected listed building where committee members are assumed to possess relevant local and background knowledge. Judicial review requires significant misleading on a material matter which remains uncorrected. Where assessment identifies no harm to heritage assets, the statutory requirement to give considerable importance and weight to preservation is not engaged in the same way as where harm is found. Political substitution of planning committee members under valid procedural rules is generally outside the court’s supervision, provided the committee remains properly constituted and the substitute approaches the application with an open mind.

The claimant, a resident acting on behalf of the Oaks Action Group, challenged Ealing’s grant of planning permission for redevelopment of the Oaks Shopping Centre and adjoining car park. The challenge alleged unlawful substitution of a planning committee member, apparent bias or predetermination, and defects in the officer’s treatment of listed buildings and a conservation area.

The defendant and interested party also contended that the claim was filed out of time because the claim form omitted the legal basis and statement of facts and grounds. The court therefore considered the substitution process, the heritage assessment, and whether an extension of time should be granted.

1. Substitution and predetermination. The council’s Rule 24 permitted a political group to substitute an alternative member where a member was unable to attend for a reasonable reason. The choice of substitute was part of the political process and was not for the court to review. The procedure was followed, and the committee was properly constituted.
2. The evidence did not show that the substitute councillor had a closed mind. His contribution demonstrated that he considered the proposal and reached an on-balance conclusion. There was no real appearance of bias or predetermination. This ground was unarguable.
3. Officer’s report. Applying the principles concerning fair reading of planning reports, the report did not need to set out every statutory test or list every potentially affected listed building. Members were assumed to have local and background knowledge. Nor was there a legal duty to identify differing professional opinions within the planning department, provided material considerations were not omitted.
4. The report accurately described English Heritage’s response as raising no objection, while recording the remaining concerns about height and design. The visual impact assessment formed part, but was not the whole, of the assessment of effects on heritage assets. The report and background papers showed a diligent assessment under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, leading to a rational conclusion that there was no harm to the significance or setting of the relevant heritage assets.
5. The cases concerning considerable importance and weight where harm to heritage assets is found were distinguishable. Since no harm had been found, the officer was not required to conduct the balancing exercise on that basis.
6. Delay. The claim form was defective under the Civil Procedure Rules but was not a nullity. In the circumstances, the claimant’s attachment of the pre-action protocol letter, the absence of prejudice, and the failure of the defendant or interested party to seek strike-out justified an extension of time. Permission to proceed on the substantive grounds would nevertheless have been refused.

First-instance judicial review proceedings. No appellate history was stated in the judgment.