Stefanou, R (on the application of) v Westminster City Council & Anor

When determining an application under Town and Country Planning Act 1990, a local planning authority must assess the whole proposal against the development plan and material considerations current at the date of decision. An extant permission may be a material fallback consideration, but it does not remove that statutory duty or prevent changed policy circumstances from being considered.

A planning policy directly applicable to the proposal must be addressed. A bare reference in a listed building consent informative does not establish that the policy was properly considered where the decision-maker’s approach shows that it considered only the changes to an earlier scheme. The permission was therefore quashed.

The claimant challenged Westminster City Council’s grant of planning permission and listed building consent for alterations to a listed building adjoining his own, including a substantial multi-level basement.

The Council treated a 2011 permission as extant and dealt with the 2016 application principally as a variation involving changes to an already approved scheme. By then, Westminster City Plan policy CM28.1 had been adopted and imposed restrictive requirements on basement development. The central issues were whether the earlier permission had been implemented and whether the Council had lawfully considered the whole revised proposal against the current development plan and material considerations.

1. Ground 1 dismissed. The governing question under sections 56 and 91 of the Town and Country Planning Act 1990 was whether a material operation comprised in the permitted development had begun. The court accepted that it could determine disputed facts where necessary. However, the planning history showed that the Council had previously approved the relevant façade works as works authorised by the 2011 permission. That decision had not been challenged at the time. It was impermissible to reopen it two years later through a challenge to a subsequent application. In any event, the court would have declined to quash the decision in its discretion on this ground.
2. Ground 2 succeeded. Sections 70(2) of the Town and Country Planning Act 1990 and 38(6) of the Planning and Compulsory Purchase Act 2004 required the Council to consider the whole 2016 proposal against the development plan and material considerations. The 2011 permission could be taken into account as a fallback position, but it did not relieve the Council of that duty. The Council’s approach that it would focus only on revised elements involved an error of law.
3. Policy CM28.1 was plainly applicable to the substantial basement proposal. It was not mentioned in the planning officer’s report, despite a specific objection and the Council’s own recognition that a fresh application would probably have been refused. The court rejected the contention that an earlier consent could not be affected in practical planning terms by later policy change. The Council had to assess the application against the development plan as it stood in 2016 and determine what weight, if any, to give the extant permission as a fallback.
4. The court did not determine the planning balance or the weight to be given to the fallback position. Those matters were for the Council. It could not conclude that the outcome would necessarily have been the same had the application been approached lawfully. The planning permission was quashed, and the listed building consent was quashed with it.