Lensbury Ltd & Anor, R (on the application of) v Richmond-Upon-Thames London Borough Council & Ors

A planning authority must identify the relevant development-plan policies, assess whether the proposal accords with the plan as a whole, and then consider whether material considerations justify any departure. That conclusion may be implied from a fair reading of the decision-making documents.

For heritage assets, the authority must address the statutory duties and relevant policy requirements, but concise reasons may suffice where the assessment is clear and intelligible. Whether a proposal falls within an environmental-impact threshold may be a question of fact and planning judgment, challengeable on conventional public-law grounds where no legal construction issue arises. Technical matters such as noise assessment and enforceability of planning conditions are ordinarily matters for the planning authority’s judgment.

Lensbury Ltd and Pinenorth Properties Ltd brought separate judicial-review claims challenging Richmond-Upon-Thames London Borough Council’s grant of planning permission for a three-turbine hydroelectric facility at Teddington Weir.

The challenges concerned compliance with the development plan, assessment of listed buildings and conservation-area interests, environmental-impact-assessment screening, procedural fairness, and the precision and enforceability of a noise condition. Lang J had granted permission and ordered the claims to be heard together. The central issues were whether the Council had lawfully assessed the proposal and whether its decision was legally irrational, procedurally unfair or inadequately reasoned.

1. Disposition. Both claims were dismissed.
2. Development plan. Section 38(6) of the Planning and Compulsory Purchase Act 2004 required the Council to consider the relevant development-plan policies and the proposal’s conformity with the plan as a whole. The officers’ report identified and assessed the principal policies concerning Metropolitan Open Land, the river corridor, conservation areas, heritage assets and visual impact. The omission of an express reference to section 38(6), or to one policy, did not establish unlawfulness where the report showed that the correct planning issues had been addressed and the overall conclusion could fairly be inferred.
3. Heritage assets. The statutory duties under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, together with the relevant NPPF provisions, were properly engaged. The Council’s conclusion that the development would not cause harmful impact to the conservation area or listed footbridges was a planning judgment supported by comprehensible reasons. Since the Council found no harmful impact, it was unnecessary to undertake a balancing exercise in relation to less-than-substantial harm.
4. EIA screening. The question whether the hydroelectric installation was designed to produce more than 0.5 megawatts under Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 was, on the evidence, a question of fact and judgment. The Council had asked itself the correct question and was entitled to rely on the stated maximum output of 492 kilowatts. Its conclusion was not Wednesbury unreasonable. No separate issue of legal construction arose.
5. Procedure and noise. The Council had regard to later representations and was entitled to conclude that they raised no significant new non-noise issues. The change in committee membership did not invalidate the decision because the decision was that of the Council and the new members had access to the material documentation. Technical disputes about background noise and the operation of condition NSO1 were matters of planning judgment. On a fair reading, the condition identified representative locations and did not exclude assessment at other relevant locations; it was sufficiently precise and enforceable.

First-instance judicial review claims. The judgment states that Lang J granted permission in both claims and directed that they be heard together; no citation for that interlocutory decision is provided.