HELEN KINSEY (R on the application of) v LONDON BOROUGH OF LEWISHAM (No 2)

In a planning decision involving heritage harm, “optimum viable use” under paragraph 196 of the National Planning Policy Framework applies only where the development entails a proposed use of a designated heritage asset. It means the economically viable use likely to cause the least harm to that asset. It is not a free-standing description of an economically viable redevelopment scheme.

A planning report must be read fairly as a whole. An inappropriate phrase will not vitiate a decision if, on that reading, members would understand the report as communicating a proper planning judgment rather than an unsupported conclusion that no less harmful scheme was viable. Statutory publication duties do not exhaust common-law procedural fairness, but late publication must be assessed in context. A failure to consider a material representation will not justify relief where the outcome would inevitably have been the same.

The claim was a sequel to [2021] EWHC 1286 (Admin), by which Lang J quashed an earlier grant of planning permission for redevelopment at the Sydenham Hill Estate and remitted the application to the Council. The application was reconsidered after referral to the Design Review Panel, and permission was granted again.

The claimant challenged the second decision on four grounds. They concerned the use of “optimum viable use” in the officer’s report, publication of documents under the Local Government Act 1972 and the Council’s Statement of Community Involvement, common-law procedural fairness, and failure to consider a letter from the London Wildlife Trust. The court also considered whether the fourth ground should be added late.

1. Ground 1. Permission to seek judicial review was granted, but the ground failed. Paragraph 196 of the National Planning Policy Framework and the relevant Planning Practice Guidance apply “optimum viable use” where the development entails use of a designated heritage asset. The concept concerns the economically viable use likely to cause the least heritage harm. The development concerned the redevelopment of a site, not the use of a designated heritage asset. The concept therefore had no application in that sense.
2. The report’s reference to securing the “optimum viable use of the site” was inappropriate because it borrowed language from the heritage policy. Nevertheless, the report, read fairly as a whole, communicated that the economically viable scheme optimised the use of the site and delivered substantial planning benefits. It did not communicate that officers had assessed, or concluded, that no smaller and less harmful scheme would be viable. The report was therefore not materially misleading. The reasoning applied Mansell’s fair-reading principle, reported at [2017] EWCA Civ 1314.
3. Grounds 2 and 3. The statutory definition of “background papers” required the proper officer to form an opinion whether the documents disclosed facts or matters on which the report or an important part of it was based and had been relied on to a material extent in preparing it. A document was not automatically a background paper merely because it was discussed, summarised or relied on in the report. No legal misdirection or unreasonable exercise of judgment was shown. The statutory publication scheme did not exclude common-law fairness, but the publication timetable was fair in context. The detailed officer report supplied a framework for understanding the later documents, and the case was not a reconsultation case.
4. The approach in Joicey, reported at [2014] EWHC 3657 (Admin), was distinguished on the facts. The court applied the contextual factors identified there, including the character of the material, the audience and its bearing on the decision. The approach in McCann, reported at [2014] EWHC 4335 (Admin), was applied in assessing whether any publication breach warranted quashing.
5. Ground 4. Permission to amend would have been granted despite the claimant’s procedural mistakes. The ground nevertheless failed. The court considered the substance of the Wildlife Trust’s concerns and found that the officer’s report had addressed all material points. The absence of the Trust’s voice could have assisted objectors, but could not have affected the outcome. The statutory highly-likely-no-substantial-difference test was therefore also satisfied.
6. The alleged failure to consider the Wildlife Trust’s letter did not involve a triggering receipt. The letter had been sent to a non-functional address and merely copied to the relevant inbox, which was not monitored for copied emails. The planning officer was not reasonably in a position to become aware of it. This approach was consistent with Kides, reported at [2002] EWCA Civ 1370, and Rainbird, reported at [2018] EWHC 657 (Admin).
7. The claim was dismissed. The claimant was ordered to pay the Council’s costs, summarily assessed at £5,000. Permission to appeal was refused.

1. High Court (Planning Court): Lang J quashed the earlier grant of planning permission in [2021] EWHC 1286 (Admin) and remitted the application for reconsideration.
2. High Court (Planning Court): on reconsideration, the Council granted planning permission again. The present claim for judicial review was dismissed. Permission to appeal was refused.