Strongroom Limited v London Borough of Hackney

Where judicial review proceedings settle without the claimant obtaining the relief sought, the court should first determine whether the claimant was wholly or partly successful, or whether the settlement merely reflected a compromise. If the position is unclear, the court may assess whether it is tolerably clear who would have won had the claim proceeded to trial.

Agreement obtained for reasons unrelated to the merits, including a separate commercial agreement with an interested party, does not ordinarily justify a costs order. A planning permission is interpreted by the natural and ordinary meaning of its words in context. Officer reports are read with reasonable benevolence, but a material error which may have affected the committee’s decision can render the decision unlawful.

Strongroom Limited brought two judicial review claims concerning planning permissions granted by the London Borough of Hackney for development at an adjoining site. The claims challenged decisions discharging construction-management conditions dealing with noise and vibration affecting Strongroom’s recording studios.

The first claim challenged the discharge of a condition imposing numerical noise and vibration limits. The second challenged the discharge of a more general construction-management condition attached to a change-of-use permission. The claims settled on the hearing date. The parties agreed substantive terms, but left the costs payable by the Council for determination.

The central issue was whether the settlement made Strongroom wholly or partly successful, and, if not, whether the merits were sufficiently clear to justify a costs order.

1. Costs after settlement. Applying R (M) v Croydon LBC, the court considered whether Strongroom had obtained the relief sought. Neither challenged decision had been quashed. Agreement on the interpretation of Condition 15 did not represent substantive success because the Council had not materially contested that interpretation and proceedings were unnecessary to secure it.
2. The agreement that the noise limits would apply to works under the second permission was made with the interested party, not the Council. It did not quash or replace the Council’s decision to discharge Condition 6, would not bind a subsequent developer, and formed part of a commercial arrangement. Any relief obtained was therefore unrelated to the underlying merits. The principles in R (Tesfay) and R (MH) (Eritrea) supported that conclusion.
3. JR1 merits. Condition 15 required construction to be capable of being carried out without exceeding the specified levels. Exceedances were breaches, although monitoring and liaison were required so that any breach could be rectified. The expression “on-site testing” referred to testing within the planning application site, not necessarily within the studios. In any event, testing had also taken place in the studios. The Council was entitled to resolve the expert dispute about margins of error, alternative construction methods and cumulative effects as a matter of planning judgment. The officer’s report and advice to the committee were not materially misleading and the Council had sufficient information.
4. JR2 merits. The challenge was in time because it concerned discharge of Condition 6, rather than the validity of Condition 6 itself. The Council rationally distinguished the change-of-use proposal from the substantially more intrusive first permission. It was entitled to approve the construction-management plan and rely on its enforceable noise limit without requiring an equivalent of Condition 15.
5. Applying the settlement-costs principles, it was not tolerably clear that Strongroom would have succeeded at trial. The appropriate order was no order as to costs in both claims.

First-instance judicial review proceedings. The claims were settled by consent on 22 November 2022, with costs between Strongroom Limited and the Council left for determination by the court.