Susan Hall, R (on the application of) v Royal Borough of Greenwich

A planning committee may grant permission subject to conditions requiring further surveys, investigations and approvals, provided the conditions address identified planning objectives and create an adequate mechanism for controlling implementation. The fact that the precise impacts remain to be ascertained does not, without more, make the decision irrational, evidentially inadequate or unlawful.

Relevant considerations concerning deliverability must be addressed, but a development’s benefits are not speculative merely because their delivery depends on compliance with protective conditions. For Aarhus costs caps, the claimant’s disclosed resources are specifically relevant, and the court must strike a fair balance without creating a chilling effect.

The claimant sought judicial review of the Royal Borough of Greenwich’s decision to grant planning permission for demolition of an existing dwelling and construction of three houses. The permission was subject to conditions requiring, among other things, a detailed tree survey, a basement impact assessment and a geological survey.

Permission for judicial review had previously been refused on the papers. At the renewal hearing, the claimant argued that the committee could not lawfully accept the effects on trees, neighbouring amenity and deliverability while those investigations remained outstanding. She also challenged a varied Aarhus costs cap and associated costs orders.

1. Judicial review. The renewal application disclosed no arguable ground with a realistic prospect of success. The committee was entitled to accept the development as planning-acceptable subject to revised Conditions 3 and 6.
2. Condition 3 required implementation in accordance with the approved arboricultural material and a detailed tree survey for Tree T6. That survey would establish the location and size of the roots and whether retention and protection during construction were possible. The condition therefore provided a lawful mechanism to safeguard tree health, safety and visual amenity, consistently with the policy of retaining valuable trees wherever possible.
3. Condition 6 required an approved basement impact assessment, including geological investigation of stability and local sinkholes, together with structural methodologies endorsed by a chartered civil or structural engineer. It rationally addressed structural stability, construction effects, nuisance, environmental health, residential amenity and adjacent trees.
4. The committee had expressly considered whether further information should precede permission and how the conditions would operate. The outstanding investigations did not mean that the committee had acted on an insufficient evidential basis or disregarded relevant considerations.
5. The heritage assessment identified less than substantial harm to the Blackheath conservation area from the greater quantum of development. The same quantum, if delivered, would provide the public benefit of three family dwellings. The court therefore rejected the argument that deliverability had been unlawfully ignored in the planning balance.
6. Costs. Under CPR45.44, the claimant’s properly disclosed resources were a relevant consideration when varying the default £5,000 Aarhus costs limit. The varied £25,000 cap struck an appropriate and compliant balance and did not create a prohibitive or chilling costs burden. The existing costs orders were upheld, subject to deduction of £1,177.50 for pre-action costs and VAT which could not properly be recovered.

Permission for judicial review was refused on the papers by Sir Ross Cranston on 17 April 2023. The claimant renewed the application before the High Court (Planning Court), which refused permission and declined to overturn the related costs orders, subject to the stated deduction.