Jennie Sharokin Arthur, R (on the application of) v London Borough of Barnet

A planning authority must take into account a national planning policy that is plainly material to an application, even where a more stringent local policy has already been considered. Materiality is a question of law, distinct from the weight given in planning judgment. An omission may nevertheless be immaterial to the remedy where it is highly likely that the outcome would have been substantially the same. An officer’s report is read with reasonable benevolence, but material errors or omissions which may have misled the committee can make the decision unlawful. Where an outline permission contains an unlawful time-limit condition, the court may sever the offending wording where the remainder is linguistically and planning-wise workable.

The claimant sought judicial review of the interested party’s outline planning permission for residential development on part of the Finchley Memorial Hospital site. The proposal involved the loss of public open space and housing intended primarily for NHS key workers. The claim alleged four errors: failure to consider paragraph 97 of the National Planning Policy Framework; failure to assess the proposal against affordable housing policies; an error concerning the salary bands of eligible NHS occupiers; and failure to impose a lawful commencement period under section 92 of the Town and Country Planning Act 1990.

The planning committee approved the application by six votes to four, with two abstentions. The central issues were whether the committee had been materially misdirected or deprived of relevant considerations, and whether the statutory time-limit provisions invalidated part of the permission.

1. Ground 1 dismissed. Paragraph 97 of the National Planning Policy Framework was a material consideration. The loss of public open space was plainly a central issue, and the fact that the local policy was more stringent did not remove the need to consider the national policy. The distinction between materiality and weight, explained in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, was decisive. However, the policy had been accurately brought to the committee’s attention through written objections and oral representations. The evidence showed that members knew its substance and significance. In any event, relief would have been withheld under section 31(2A) of the Senior Courts Act 1981 because it was highly likely that the outcome would not have been substantially different.
2. Ground 2 dismissed. The committee was advised that the scheme did not fit the traditional affordable housing model and was instead directed to a specific NHS workforce need secured through the section 106 agreement. The report sufficiently explained the departure from conventional affordable housing policies. It was unnecessary to state expressly that the proposal failed to comply with those policies where both the non-compliance and its justification were apparent. The report was not to be read with undue rigour, applying Mansell v Tonbridge and Malling Borough Council [2019] PTSR 1452.
3. Ground 3 dismissed. The report incorrectly treated NHS salary Band 8 as ending at the Band 8a figure, rather than distinguishing Bands 8a to 8d. That was an error, but the evidence did not establish that the committee as a whole had been misled. One member repeated the incorrect figure but voted against permission. Another member gave the higher figure, and the section 106 controls accurately restricted occupation and rents. The alternative statutory-remedy test would also have been satisfied.
4. Ground 4 succeeded. Condition 3 unlawfully permitted the commencement period to run from the approval of the last pre-commencement condition, for which no application deadline was specified, allowing indefinite delay. Section 92(3) of the Town and Country Planning Act 1990 deemed the statutory conditions to apply where required conditions were absent; it did not rewrite an express but unlawful condition. The court followed the severance approach in R (Midcounties Co-operative Limited) v Wyre Forest District Council [2009] EWHC 964 (Admin). The offending wording in condition 3 was to be severed, with the parties invited to agree the form of order.