Flynn v London Borough of Southwark

In reviewing a planning committee’s decision, an officer’s report must be read as a whole, with reasonable benevolence and without undue legalistic rigour. The court asks whether the report materially misled the committee on a matter bearing on its decision, and whether the decision might have been different without the defect. A planning committee’s delegation to officers to complete an “appropriate” section 106 agreement is understood from the report and resolution, but the report need not prescribe every mechanism literally. Officers may adopt a practical mechanism that secures the identified planning purpose. Where a review mechanism is required but its detail is left open, officers may exercise planning judgment in selecting the policy framework, calculation and tenure form, provided the result remains within the delegated scope.

The claimant sought judicial review of Southwark’s grant of planning permission for the redevelopment of the Elephant and Castle shopping centre and adjoining land. The challenge concerned the affordable housing offer, the accuracy of advice about prospective GLA grant funding, the scope of the officers’ authority to settle the section 106 agreement, and the mechanism for a possible build-to-sell fallback on the west site.

The court conducted a rolled-up hearing. It granted permission on all three grounds but dismissed the claim on its merits, finding that the officers’ report, read with its addenda, had not materially misled the planning committee and that the section 106 provisions remained within the authority conferred by the resolution.

1. Outcome. Permission was granted on all three grounds, but the claim for judicial review was dismissed.

2. Ground 1. The statement that GLA grant funding had been recently confirmed and had facilitated the increase from 74 to 116 social rented units was inadequately expressed and factually inaccurate. Read as a whole, however, the officers’ report and addendum no 1 made clear that there was only an agreement in principle for grant funding, and that the interested party had committed to provide the 116 units whether or not funding was secured. The committee was therefore not materially misled. The mistake-of-fact challenge failed at the first stage because no mistake as to an existing fact remained when the material was read as a whole. The court nevertheless observed that, even if an error of law had been established, it would have declined to quash the permission under Senior Courts Act 1981, section 31(2A), because a substantially different outcome was highly unlikely.

3. Ground 2. The reference in the officer’s report to transferring land and sufficient money to secure the social rented units was purposive, not a literal prescription of the section 106 machinery. Options involving transfer of a long leasehold interest and money or money’s worth, including credit for valuable non-residential space in the mixed-use block, secured the underlying purpose. The possibility of some forward funding by the council did not place the agreement outside the delegation.

4. Ground 3. The report left the detail of the build-to-sell review mechanism open. It was lawful to use emerging policy P4, ring-fence 192 habitable rooms attributable to the east site, and calculate a requirement of 15 additional social rent equivalent habitable rooms. The differences between social rented and social rent equivalent accommodation were not material to the delegated issue, particularly given the section 106 safeguards concerning permanence, monitoring, tenure and rent.