Stephen Whiteside, R (on the application of) v London Borough of Croydon

When approving details under one planning condition, a local planning authority must consider whether the approved details may prejudice compliance with another condition in the permission. Conditions must be considered in the context of the permission as a whole.

Where credible concerns indicate that approved details may make compliance with accessibility requirements unlikely, the authority must at least consider whether to investigate those concerns. It may not treat the issue as immaterial merely because compliance will ultimately be assessed under the building-control regime. A bare statement that equalities have been considered does not itself establish compliance with the Public Sector Equality Duty. Relief may nevertheless be refused where it is highly likely that the outcome would have been substantially the same.

The claimant sought judicial review of the defendant local planning authority’s approval of details discharging condition 18 of a planning permission for residential development. Condition 14 required the dwellings to comply with optional accessibility requirements M4(2) and M4(3) under the Building Regulations 2010.

The claimant argued that the approved finished levels were inconsistent with step-free access to two dwellings, and that the authority had irrationally failed to investigate the issue and had failed to comply with the Public Sector Equality Duty under section 149 of the Equality Act 2010. The central issues were whether condition 14 was material to the discharge of condition 18, whether further inquiry was required, and whether relief had to be refused under section 31(2A) of the Senior Courts Act 1981.

1. The claim failed and relief was refused. The court applied the test that an application to discharge a planning condition must be satisfactory; satisfactory did not mean ideal or perfect. [2022] EWHC 2148 (Admin).
2. Although condition 18 had a particular purpose concerning finished levels, the authority was dealing with the planning permission as a whole. Approval of details under one condition could affect compliance with another. The authority was therefore entitled, and in the circumstances required, to have regard to the likelihood that the approved levels would permit compliance with condition 14.
3. The authority was not being asked finally to determine compliance with the optional requirements under the Building Regulations 2010. It was required to consider possible prejudice to compliance. The building-control regime and the guidance did not require the authority to ignore that issue. Preventing deficient work before construction could be preferable to seeking remediation after construction.
4. The claimant had not proved that compliance with the optional requirements or the guidance was impossible. The guidance did not provide the only possible means of compliance, minor changes to approved drawings could be permissible, and compliance could be determined definitively only on completion. Nevertheless, the claimant’s evidence raised a material concern about the likelihood of compliance.
5. The officers erred in law by treating accessibility and compliance with the optional requirements as immaterial because they were not reasons for condition 18. It was irrational not even to consider whether to investigate the concern. The authority might have had a positive duty to investigate, but it was unnecessary to decide that point. At minimum, it had to consider whether to investigate or leave the matter to the building inspector.
6. A bare statement in the officer’s report that equalities had been taken into account did not establish compliance with the Public Sector Equality Duty. However, had the authority considered the issue, it could have complied with that duty even if it decided to leave the matter to building control.
7. Under section 31(2A) of the Senior Courts Act 1981, relief had to be refused. On the evidence, it was highly likely that the authority would still have approved the levels. The claimant’s own evidence indicated that step-free access was impossible within the parent permission, and no alternative levels within its ambit were shown.