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

The claimant challenged the council's decision to discharge condition 18 of planning permission 21/0919/FUL on the single ground of irrationality, arguing that the approved site levels made compliance with condition 14 (which required compliance with the optional Building Regulations M4(2)/M4(3) standards) impossible and that the council failed in its duty to carry out sufficient inquiry and in its Public Sector Equality Duty (section 149 Equality Act 2010).

The court held that a decision to approve details under one condition can properly take into account whether the approved details would prejudice compliance with other conditions and that the council had been wrong to treat condition 14 as immaterial when considering discharge of condition 18. The officer report therefore contained an error of law and the failure to consider whether to investigate the claimant's concerns was Wednesbury-unreasonable.

However, the claimant failed to prove on the evidence that compliance with condition 14 was impossible on the basis of the parent permission and approved drawings. Because it was highly likely that the council would nevertheless have granted the approval even if it had investigated the concerns, relief was refused under section 31(2A) Senior Courts Act 1981 and the claim dismissed.

The claimant, a local resident and former planning officer, obtained permission to apply for judicial review to challenge the defendant London Borough of Croydon's decision of 23 February 2023 to discharge condition 18 of planning permission 21/0919/FUL. The permission originally authorised demolition and erection of two 3-storey blocks comprising seven dwellings. Condition 14 required compliance with the Building Regulations 2010 optional standards M4(2) (accessible and adaptable) and M4(3) (wheelchair standard) for specified units; condition 18 required approval of finished land levels prior to commencement.

The claimant alleged that the levels approved under condition 18 made it impossible for some units to have step-free access and therefore rendered compliance with condition 14 impossible; he advanced irrationality/Wednesbury and duty-to-inquire arguments and relied on the Public Sector Equality Duty (section 149 EA 2010).

• Nature of the claim: judicial review of a delegated decision discharging a pre-commencement condition (condition 18); relief sought was quashing of the approval.
• Issues framed: (i) the proper test for discharge of a planning condition and whether the application was satisfactory; (ii) whether the council could or should consider the effect of approving levels on compliance with other conditions (notably condition 14); (iii) whether condition 14 created an independent, enforceable planning obligation to meet the optional Building Regulations standards; (iv) whether the claimant proved impossibility of compliance; (v) whether the PSED was engaged and complied with; and (vi) whether any legal error was material under section 31(2A) SCA 1981.

The court summarised applicable principles on irrationality, the duty to make sufficient inquiry, interpretation of planning conditions and the PSED, and set out the statutory and guidance regime under the Building Regulations 2010 and Approved Document M. The judge held that while the council was entitled and in fact required to consider whether approval of levels under condition 18 would prejudice compliance with condition 14, the claimant did not prove that the approved levels made compliance impossible. The officer evidence suggested that alternative access arrangements might be possible and the Approved Document is guidance, not an absolute rule, and compliance with the Building Regulations is finally a matter for building control on completion. The officer report's statement that equality matters were "taken into account" did not sufficiently show substantive PSED consideration, but had the council properly considered the claimant's concerns it would, in all likelihood, have reached the same decision. On that basis relief was refused under section 31(2A) and the claim dismissed.

The court therefore: recognised an error of law and irrationality in the decision-making process but refused relief because the claimant had not shown he would have obtained a materially different outcome.

The claim is dismissed. The court held that the council was wrong to treat compliance with condition 14 (the M4 optional standards) as immaterial when deciding whether to approve levels under condition 18 and that it was irrational not to consider whether to investigate the claimant's concerns. Nevertheless, the claimant did not establish that compliance with condition 14 was impossible on the evidence and it was highly likely the council would still have granted the approval; accordingly, relief was refused under section 31(2A) Senior Courts Act 1981.

Permission to apply for judicial review was granted by Lang J on 12 May 2023. The claimant had earlier brought a judicial review relating to the grant of the parent permission which was dismissed in December 2022 ([2022] EWHC 3318 (Admin)).