Holborn Studios Ltd, R (On the Application Of) v London Borough of Hackney

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.

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.

1. 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.

2. 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].

3. 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].

4. 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].

5. 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].

6. 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].

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.