LONDON BOROUGH OF HILLINGDON (R on the application of) v MAYOR OF LONDON

In determining a planning application, a decision-maker must interpret development-plan policies objectively and assess whether the proposal accords with the plan as a whole. Policy provisions may pull in different directions. Non-compliance with one policy does not prevent the decision-maker from considering other relevant policies and material considerations, including detailed impact criteria.

Where an application is reconsidered after a material change in planning policy, fairness requires a procedure appropriate to the circumstances. A further oral hearing is not invariably required. However, material new evidence responding to a party’s expert evidence should ordinarily be disclosed before the decision is made. Relief may nevertheless be refused where it is highly likely that disclosure would not have substantially changed the outcome.

The Claimant local planning authority challenged the Defendant’s decision to grant planning permission for a mixed-use development of up to 11 storeys on the site of the former Master Brewer Motel in Hillingdon.

The challenge concerned the interpretation of Policy D9 of the London Plan 2021, failure to take account of air-quality evidence, and procedural fairness when the application was reconsidered after the London Plan had been adopted. The Defendant accepted that reconsideration was required but declined to hold a further oral hearing. The central issues were whether the decision lawfully applied Policy D9, considered the air-quality evidence, and adopted a fair reconsideration procedure.

1. Policy D9. The claim failed on the interpretation of Policy D9 of the London Plan 2021. Part A required boroughs to define tall buildings, Part B required them to identify suitable locations, Part C identified impacts to be assessed, and Part D dealt with public access. Parts A and B were not gateways or preconditions to Part C. A proposal outside a location identified under Part B could therefore still be assessed against Part C impacts and against the development plan read as a whole.
2. The statutory planning exercise under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004 required the Defendant to identify the relevant policies, interpret them properly, determine whether the proposal accorded with the development plan as a whole, and weigh material considerations. The Defendant was entitled to conclude that the proposal accorded overall with the development plan despite conflict with Part B of Policy D9, having regard to the housing benefits, the brownfield and sustainable nature of the Site, transport accessibility and the assessed impacts.
3. Air quality. The Defendant had regard to the Claimant’s air-quality evidence and was entitled, on the advice of GLA officers, to prefer the applicant’s expert evidence and conclude that the development was acceptable subject to mitigation. The reports’ limited analysis of the Claimant’s evidence did not establish a material misdirection.
4. Reconsideration and fairness. Section 2F of the Town and Country Planning Act 1990 did not automatically apply afresh where the statutory procedure had already been followed at the first consideration. The procedure on reconsideration was discretionary, subject to fairness. In the circumstances, fairness required an opportunity for the Claimant to make written representations before the officers’ recommendation and the redetermination, but did not require disclosure of the Update Report in advance or a further oral hearing.
5. The failure to disclose an October 2020 technical note responding to the Claimant’s air-quality review was procedurally unfair and unlawful. Nevertheless, relief was refused under section 31(2A) of the Senior Courts Act 1981, because it was highly likely that disclosure and any further representations would not have substantially changed the decision. The claim was dismissed on all other grounds.