Kverndal v London Borough of Hounslow

A planning decision is lawful where the decision-maker evaluates the proposal against the development plan as a whole, even though a specific policy requirement is not met, provided the reasoning makes the overall judgment apparent. An emerging plan may be a material consideration before adoption. A fall-back use is material where there is more than a merely theoretical possibility that it will occur; the weight given to it is fact-sensitive. Planning reports require a fair reading in context and need not address every policy provision expressly. A statement of community involvement creates a legitimate expectation only where it contains a sufficiently clear promise. The statutory duty concerning conservation areas requires special regard to preserving or enhancing character or appearance. It does not require the authority to secure the maximum possible enhancement.

The claimant sought permission to bring judicial review proceedings challenging the Council’s decision of 2 April 2015 to grant Lend Lease planning permission for a residential-led mixed-use redevelopment at Empire House and adjoining land in Chiswick.

Permission had previously been refused on the papers, but the renewed application was directed to a rolled-up hearing. The claimant alleged defects concerning emerging tall-building policy, the Class J permitted-development fall-back, compliance with the development plan, late marketing evidence and procedural fairness, and the statutory duty relating to the Turnham Green Conservation Area.

1. Outcome. Although each ground was arguable, none was made out and the claim failed.
2. Emerging policy and officers’ report. The report had to be read fairly as a whole. It sufficiently addressed the proposal, including the Essex Place building, the emerging tall-building policy and the surrounding townscape. The absence of an express reference to policy CC3(e) did not establish an error because the report did not rely on Empire House as a justification for the new buildings.
3. Fall-back position. The Class J permitted-development right was capable of being a material consideration. There was no requirement for a finding of an actually intended use. The relevant threshold was whether implementation was more than a theoretical possibility, after which the weight to be given was a fact-sensitive planning judgment.
4. Development plan. The proposal did not satisfy policy EP2’s two-year marketing requirement. Nevertheless, the report identified and addressed EP2, considered the loss of office space alongside the other relevant policies, and made clear on a fair reading that the proposal was regarded as acceptable against the development plan as a whole. Section 38(6) of the Planning and Compulsory Purchase Act 2004 was therefore discharged.
5. Fairness and consultation. The Council’s statement of community involvement contained no sufficiently clear promise of consultation on documents received during the application. The objectors had an opportunity to comment on the marketing evidence before and at the committee meeting. Refusal to adjourn was not procedurally unfair.
6. Heritage. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special regard to the desirability of preserving or enhancing the conservation area. That duty did not require the Council to pursue the best or maximum enhancement, and the Council had lawfully evaluated the effect of the proposal.

The judgment was a first-instance decision on a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers, and the renewed application was directed to a rolled-up hearing.