Holborn Studios Ltd, R (on the application of) v London Borough of Hackney & Anor

A planning authority relying on viability to justify a policy departure must provide material that is coherent, intelligible and publicly available in accordance with the NPPF and PPG. The assessment should use standardised inputs, including an EUV+ benchmark land value identifying the existing use value and the landowner’s premium. Documents materially relied on in preparing a committee report are background papers under section 100D of the Local Government Act 1972 and must be listed and available for inspection. Planning committee members may read objectors’ lobbying material; requiring them to forward it unread is unjustified in principle, but relief requires material prejudice. Planning policy may protect employment generally without requiring retention of a particular occupier or bespoke use. The planning permission was quashed for the viability and background-paper failures; the other grounds failed.

The claimant, a leaseholder operating a photographic studio complex, challenged planning permission granted by the London Borough of Hackney for a mixed employment and residential redevelopment of the site. An earlier permission had been quashed following R (Holborn Studios) v London Borough of Hackney [2017] EWHC 2823; [2018] PTSR 997.

The fresh judicial review challenged the new permission on three grounds: inadequate disclosure and explanation of viability information; unlawful guidance and practice concerning members’ receipt of lobbying material; and misinterpretation of development-plan policies said to protect the claimant’s existing creative-industry use. The central issues were whether the viability material complied with statutory background-paper requirements and national planning guidance, whether the treatment of lobbying material caused a legally relevant procedural defect, and whether policy required retention of the specific studio use.

The claim succeeded on ground one. Grounds two and three failed, but the planning permission was quashed.

1. Viability and background papers. Section 100D of the Local Government Act 1972 required documents materially relied on in preparing the committee report, including documents underpinning the viability analysis, to be listed and made available for inspection. The defendant had failed to comply with that obligation.
2. Planning guidance and disclosure. The Framework and PPG required a justified viability assessment to use standardised inputs, including a benchmark land value based on existing use value plus a landowner’s premium. The inputs and findings had to be presented clearly and made publicly available, subject only to exceptional treatment of genuinely sensitive details. The published material contained inconsistent and unexplained figures. It did not identify separately the existing use value or the landowner’s premium, and did not explain how the asserted EUV+ methodology had been used. The material was therefore opaque and incoherent. The approach in R(Perry) v Hackney LBC [2014] EWHC 3499; [2015] JPL 454 arose in a materially different policy context and was distinguished. The principles in R(Joicey) v Northumberland County Council [2014] EWHC 3657; [2015] PTSR 622 concerning timely publication enabling informed public representations were applicable.
3. Lobbying material. The applicable code did not prohibit committee members from receiving or reading lobbying material. Passing material to officers after reading it could be a sensible administrative measure, but requiring members to forward it unread served no proper purpose and could not be justified as proportionate under Article 10. Nevertheless, the claimant suffered no material prejudice. Its principal objections were presented fully and effectively by counsel at the committee meeting. Hopkins Homes v SSCLG [2014] PTSR 1145 supported the requirement for material prejudice, and R v Kelly v London Borough of Hounslow [2010] EWHC 1256 (Admin) was factually distinguishable.
4. Planning policy. The development-plan policies protected employment land and supported economic diversity, including creative industries, but did not require retention of the claimant’s specific type of bespoke studio floorspace. The loss of the existing use remained a relevant planning consideration, and the officers’ interpretation of the policies was lawful. Legitimate expectation and section 31(2A) of the Senior Courts Act 1981 did not require determination.

The earlier planning permission for the site was quashed following R (Holborn Studios) v London Borough of Hackney [2017] EWHC 2823; [2018] PTSR 997. On the fresh application, permission was granted on 9 August 2019. The present judicial review quashed that permission on ground one and dismissed grounds two and three.