Kinsey, R (On the Application Of) v London Borough Of Lewisham

In planning judicial review, the court must respect the decision-maker’s planning judgment, but it will intervene where an officer’s report materially misleads a committee or omits an obviously material expert consultation response. Heritage harm under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 must receive considerable importance and weight. The decision-maker must address the need for clear and convincing justification under paragraph 194 of the Framework and articulate the degree of less than substantial harm. An adopted statement of community involvement can create a clear procedural legitimate expectation. A local authority must honour it or objectively justify departure and must inform decision-makers of the promise and proposed departure. Such failures may justify quashing where a different outcome is possible.

The claimant sought judicial review of the Council’s decision to grant the Interested Party planning permission for redevelopment at the Sydenham Hill Estate. The proposed scheme involved demolishing Mais House and garages and constructing 110 social-rented homes.

The challenge concerned the treatment of heritage harm, the omission of the Council’s senior conservation officer’s objection and advice, disclosure of background papers, the rationality of the officer’s design assessment, and failure to refer the application to the Council’s Design Review Panel under its Statement of Community Involvement. Ground 3 was abandoned. The central issues were whether the decision-making process was legally defective and whether the errors justified quashing the permission.

The claim succeeded on Grounds 1, 2, 4 and 6. Ground 3 was abandoned and Ground 5 failed. The planning permission was quashed because the identified errors could have affected the Planning Committee’s assessment of the height and scale of the development.

1. Officer’s report. The court applied the principles in R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452. An officer’s report is read with reasonable benevolence, but the court must ask whether it materially misled members on a matter bearing on the decision. The omissions concerning the conservation officer’s advice were material. R (Zins) v East Suffolk Council [2020] EWHC 2850 (Admin) was distinguishable on its facts.
2. Heritage assets. The duties under sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 required a weighted balancing exercise. Harm had to be given considerable importance and weight, producing a strong presumption against permission where heritage harm was established. The officer failed expressly to direct members to apply that approach and failed to address the need for clear and convincing justification under paragraph 194 of the Framework. The report also failed to state the degree of harm within the less-than-substantial category. The reasoning in Barnwell Manor Wind Energy Limited v East Northamptonshire District Council & Ors [2014] EWCA Civ 137 and R (LOGS CIC) v Liverpool City Council [2020] EWCA Civ 861 was applied.
3. Consultation and disclosure. The conservation officer’s formal objection and expert advice were obviously material and should have been made available to members or fairly summarised. The omission breached the relevant decision-making duties. The conservation society’s letter was material, but its omission from the report was not unlawful because the letter was available to members. The conservation advice was also likely to be a background paper under section 100D of the Local Government Act 1972; the definition depended on the document’s use, not its departmental source.
4. Design Review Panel. The Council’s adopted Statement of Community Involvement created a clear procedural legitimate expectation that this major application would be referred to the Panel. Pre-application consultation did not satisfy that separate obligation. The Council failed to inform members of the mandatory policy and identified no overriding reason objectively justifying departure.
5. Relief. The threshold in section 31(2A) of the Senior Courts Act 1981 was not met. It was not highly likely that the outcome would have been substantially the same, since the Committee might have required reconsideration of the scheme’s height and scale.

Permission to apply for judicial review was granted on the papers on 10 February 2021. The judgment records no earlier appellate decision.