Summary
When a planning application is amended, the substantive question whether the amended development remains substantially the development originally proposed is distinct from the procedural question whether fairness requires renewed consultation. Re-consultation is required where its absence would deprive persons entitled to consultation of an opportunity to make representations they might wish to make, having regard to the nature, extent and potential significance of the changes.
The court determines what fairness requires; it does not merely review the authority’s assessment for irrationality. The process must nevertheless be so unfair as to be unlawful. A published statement of community involvement must ordinarily be followed and may create a legitimate expectation. Relief cannot be withheld under Senior Courts Act 1981 section 31(2A) unless a substantially different outcome was highly unlikely.
Factual background
Two claimants sought judicial review of planning permission granted by the London Borough of Hackney for the redevelopment of Eagle Wharf. After initial consultation, the application was materially amended. The changes included a 34% increase in commercial floorspace, a 22% reduction in residential units, removal of all affordable housing and revised basement studio plans. The public and the principal commercial tenant were not re-consulted.
The tenant also challenged the Council’s failure to make available unredacted letters relied upon as evidence that the proposed photographic studios were workable. The second claimant alleged failures to consider development-plan policies concerning the Blue Ribbon Network and heritage assets. The central questions were when an amended planning application requires renewed consultation, what standard the court should apply, and whether the procedural failures caused material prejudice.
Held
The claims succeeded and the planning permission was quashed. Substantive limits on amending a planning application are distinct from procedural consultation requirements. An authority cannot use amendment, partial permission or conditions to grant permission for a development which is, in substance, different from that originally applied for. That constraint exists independently of consultation.
Whether an amendment requires re-consultation depends on fairness, not solely on whether it is a fundamental or substantial alteration. The court must ask whether proceeding without re-consultation would deprive persons entitled to consultation of an opportunity to make representations they might wish to make, given the nature and extent of the changes. The court determines what fairness requires rather than merely reviewing the authority’s judgment for irrationality. The process must, however, be so unfair as to be unlawful: paras [64]–[86].
The May 2016 amendments were significant. They substantially changed the mix of uses, removed all affordable housing and replaced numerous plans and supporting documents. Officers applied the wrong approach by treating the changes as positive and without significant adverse impact. The later notice of the committee meeting was not an effective substitute for consultation because it did not explain the amendments, allowed little time and discouraged additional representations. The public and both claimants were denied a fair opportunity to respond and were materially prejudiced: paras [87]–[125].
The Council’s Statement of Community Involvement covered the applicant’s response and the two supporting letters as documents associated with the application. It created a legitimate expectation, and embodied a policy, that they would be publicly available as submitted. Late disclosure in redacted form prevented meaningful representations about the authors’ experience and the weight of their opinions. The Council gave no sufficient justification for departing from its policy. The resulting prejudice was unfair and unlawful: paras [131]–[147].
The omitted Blue Ribbon Network and heritage policies were material, but the officer’s report addressed their substance. Any failure to cite them expressly was immaterial: paras [149]–[159].
Relief was not barred by section 31(2A) of the Senior Courts Act 1981. The court could not be satisfied that, without the unlawful conduct, it was highly likely that the outcome would not have been substantially different. The planning permission granted on 8 November 2016 was therefore quashed: paras [160]–[164].
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
This was a first-instance judicial review. Lang J had granted permission to bring the claims. The High Court allowed both claims and quashed the planning permission granted by the Council.
Key cases cited
26 authorities cited.
- R (Moseley) v Haringey London Borough Council (R (Stirling) v Haringey London Borough Council) [2014] UKSC 56
- Osborn v The Parole Board [2013] UKSC 61
- Walton v The Scottish Ministers (Scotland) [2012] UKSC 44
- Walumba Lumba (previously referred to as WL) (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12
- Westminster City Council v Great Portland Estates Plc [1985] AC 661
- Ridge v Baldwin [1964] AC 40
- Secretary of State for Communities and Local Government v West Berkshire District Council & Anor [2016] EWCA Civ 441
- Gerber, R (on the application of) v Wiltshire Council & Ors [2016] EWCA Civ 84
- Majed, R (on the application of) v London Borough of Camden & Anor [2009] EWCA Civ 1029
- R v North and East Devon Health Authority, Ex p Coughlan [1999] EWCA Civ 1871
- Wet Finishing Works Ltd, R (On the Application Of) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin)
- Keep Wythenshawe Special Ltd v NHS Central Manchester [2016] EWHC 17
- Perry, R (On the Application Of) v Newmark Properties Ltd & Ors [2014] EWHC 3499 (Admin)
- R (Coronation Power Limited) v Secretary of State for Communities and Local Government [2011] EWHC 2216 (Admin)
- Johnson v Secretary of State for Communities and Local Government [2007] EWHC 1839 (Admin)
- British Telecommunications Plc v Gloucester City Council [2001] EWHC 1001 (Admin)
- Granada Hospitality Limited v Secretary of State for the Environment, Transport and the Regions (2001) 81 P & CR 36
- R v Coventry CC ex p Arrowcroft Group plc [2001] PLCR 7
- Breckland District Council v Secretary of State for the Environment (1993) 65 P & CR 34
- R v Secretary of State for the Environment, Ex parte Brent London Borough Council (Brent London Borough Council, Ex parte) [1982] QB 593
- Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P & CR 233
- Inverclyde District Council v Lord Advocate (1981) 43 P & CR 375
- Kent County Council v Secretary of State of State for the Environment (1977) 33 P & CR 70
- Wilson v Secretary of State for the Environment [1973] 1 WLR 1083
- John v Rees [1970] Ch 345
- General Medical Council v Spackman [1943] AC 627
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Cases citing this case
20 later cases · 11 positive · 1 neutral · 8 caution
Most senior citing decisions:
- Wildfish, R (on the application of) v Buckinghamshire Council & Ors [2026] EWCA Civ 283 applied
- Glenbrook Industrial Limited, R (on the Application of) v Wigan Metropolitan Borough Council [2026] EWHC 1363 (Admin) applied
- Richard Dixon, R (on the application of) v Wakefield Metropolitan District Council [2026] EWHC 1272 (Admin) distinguished
- Friends of Gillingham (Norfolk) Countryside Community Interest Company, R (on the application of) v South Norfolk District Council [2026] EWHC 777 (Admin)
- Glenbrook Industrial Limited, R (on the application of) v Wigan Metropolitan Borough Council [2025] EWHC 3301 (Admin)
- Wildfish, R (on the application of) v Buckinghamshire Council [2025] EWHC 3060 (Admin)
- Oliver Hawes, R (on the application of) v London Borough of Tower Hamlets [2024] EWHC 3262 (Admin)
- Carol Gurajena & Anor, R (on the application of) v London Borough of Newham [2024] EWHC 1745 (Admin)
- Tudur Davies, R (on the application of) v Vale of Glamorgan Council [2023] EWHC 3161 (Admin)
- Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities & Ors [2023] EWHC 2842 (Admin)
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