Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council

A planning authority must determine an application in accordance with the development plan unless material considerations indicate otherwise. It must understand the relevant policies, decide whether the proposal accords with the plan as a whole, and give the plan statutory priority.

An officer’s report is read fairly and as a whole, with attention to substance and its informed audience. It need not discuss every policy separately.

A strategic policy giving Metropolitan Open Land the same protection as Green Belt imports both the restrictive definition of appropriate development and the requirement for very special circumstances to justify inappropriate development. A local policy cannot dilute that protection. The authority must identify and apply the correct policy framework even where applicants and objectors overlook it.

The Council granted planning permission for a hydro-electric facility at Teddington Weir, within Metropolitan Open Land and a conservation area. Lensbury Ltd sought judicial review, alleging that the Council had failed to comply with Planning and Compulsory Purchase Act 2004, section 38(6), by failing properly to apply relevant development-plan policies.

Supperstone J dismissed the claim in [2016] EWHC 980 (Admin). The appellant challenged the Council’s treatment of the London Plan policy protecting Metropolitan Open Land, its conservation-area policy, and several other local policies.

The central issue was whether the Council had lawfully assessed the proposal against the development plan, particularly whether the Metropolitan Open Land policy incorporated the national Green Belt definitions of appropriate and inappropriate development.

1. Appeal allowed and planning permission quashed. The Council had misinterpreted London Plan policy 7.17 and consequently failed to apply the correct test to the proposed development.

2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the decision-maker to understand the relevant provisions of the development plan and determine whether the proposal accords with the plan as a whole. The statute does not prescribe a universal method. An officer’s report is read fairly, as a whole and in substance, against the knowledge reasonably attributable to its informed audience.

3. Policy 7.17 required Metropolitan Open Land to receive protection equivalent to Green Belt. Its language and commentary imported both elements of national Green Belt protection: the restrictive definition of appropriate development and the requirement for very special circumstances before inappropriate development may be permitted. Local policy DM OS2 could not redefine appropriate development so as to dilute that strategic protection. Neither policy had precedence, and both had to be addressed according to their proper meaning.

4. The proposal did not fall within the national categories of appropriate development. The Council therefore erred by failing to identify it as inappropriate development and by failing to ask whether very special circumstances justified permission. As guardian of the public interest, the Council had to identify the correct policy framework even though neither the applicant nor the objectors had raised the point.

5. The remaining grounds failed. Policy DM HD1 reflected the statutory conservation-area duty rather than imposing a separate requirement that every development must both preserve and enhance the area. In any event, the report adequately identified visual enhancement. Read substantively, the report also addressed the other policies concerning local character, open land, the Thames corridor and design quality.

6. Relief could not be withheld under section 31(2A) of the Senior Courts Act 1981. The Council had omitted the critical assessment demanded by a strict policy protecting an important public interest, and very special circumstances were far from obvious. It was therefore not highly likely that lawful consideration would have produced an outcome substantially no different for the appellant.

1. Court of Appeal (Civil Division): The appeal was allowed and the planning permission quashed: [2016] EWCA Civ 814.
2. High Court, Administrative Court: Supperstone J dismissed the judicial review claim: [2016] EWHC 980 (Admin).