PS v Royal Borough of Greenwich & Ors

In judicial review of a planning decision, the court assesses whether the decision-maker considered material matters and avoided immaterial ones. It does not resolve competing factual or expert evidence. An officer’s report is read for substantial misleading omissions or errors, not analysed as if it were legislation, and is prepared for a knowledgeable readership. In assessing air-quality effects, the relevant question is ordinarily the effect of the development under consideration, measured against existing background pollution. A requirement to consider cumulative effects does not necessarily require assessment of every source of existing pollution. The court must refuse relief where it is highly likely that the outcome would not have been substantially different, while retaining a residual discretion in an appropriate case.

The claimant sought judicial review of a planning permission granted by the Royal Borough of Greenwich to the interested parties for amendments to the Enderby Wharf cruise-terminal development. An earlier permission authorised the jetty, cruise-terminal operations, hotel and residential development. The challenged permission altered parts of the development but did not alter the berthing arrangements or the number of cruise-ship visits. The claimant alleged failures concerning assessment of cumulative air-quality effects, ship emissions, relevant planning policies, the National Planning Policy Framework and the environmental statement. The central issue was whether the authority had unlawfully failed to assess or take into account the total effects of ship and development-related emissions.

The claim was dismissed. The decision under challenge was not unlawful.

1. Judicial review and officer’s report. The court applied the ordinary Wednesbury approach. It could not resolve factual disputes or choose between competing expert opinions. Relief could arise only if material matters were omitted, immaterial matters were considered, or the officer’s report was materially misleading through an omission or erroneous assertion. Reports must be read for a knowledgeable readership and not subjected to detailed analysis as if they were statutory provisions, applying R v Mendip DC ex p Fabre (2000) 80 PTCR 500 and Oxley Farms v Selby DC [1997] EG 60 (CS).
2. Air quality. The 2015 permission did not alter the already-authorised berthing of cruise ships. The authority was therefore entitled to focus on the effect of the development being considered, including additional road and terminal emissions, rather than treating the whole existing cruise operation as part of the variation. The authority had nevertheless considered wider ship emissions through additional reports and the addendum report to the planning board. The relevant policies and National Planning Policy Framework paragraphs 120 and 124 were complied with.
3. Environmental statement. The absence of ship-emission information from the environmental statement did not justify quashing the permission. The information was not material to the proper consideration of the application and, in any event, the relevant material had been considered in other reports.
4. Relief. Under section 31(2A) of the Senior Courts Act 1981, relief had to be refused if it appeared highly likely that the outcome would not have been substantially different. Even if an error had been established, the 2012 permission could still have been implemented and the same ship emissions would have occurred. Relief would therefore have been refused under section 31(2A) or in the exercise of the court’s discretion.

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