Strongroom Limited, R (on the application of) v London Borough of Hackney

Where a public authority has unlawfully failed to consult, relief must be refused under section 31(2A) of the Senior Courts Act 1981 only if the authority proves that it is highly likely that the outcome would not have been substantially different. The burden lies on the defendant. The court must assess the counterfactual decision-making process objectively, while avoiding deciding the substantive merits or assuming the decision-maker’s role.

In a prior-approval case, a material misunderstanding of the scope of a noise condition may prevent the court from finding that the outcome would necessarily have been unchanged. A consultation opportunity is material where it could have led to further investigation, expert evidence or additional conditions.

The claimant, which operated recording studios and a live music venue opposite the site, sought judicial review of the defendant local planning authority’s grant of prior approval for conversion of commercial premises into six dwellings.

The authority accepted that it had unlawfully failed to notify or consult the claimant on the second application, although it argued that the court should refuse a quashing order because the outcome would have been the same and the interested party would lose a permitted-development fallback position.

The central issue was whether section 31(2A) of the Senior Courts Act 1981, or the court’s general discretion, required refusal of relief.

1. Claim allowed; prior approval quashed. The defendant’s failure to consult the claimant on the second application was unlawful. The claimant had been consulted on a materially similar first application, had made the only objection, and operated directly opposite the site. The reduced consultation area had no rational justification, and the officer’s statement that there were no objections was unreliable ([54]-[58]).
2. Section 31(2A) of the Senior Courts Act 1981 imposed a duty to refuse relief only if the defendant established that it was highly likely that the outcome for the claimant would not have been substantially different. The burden and high evidential threshold lay on the defendant. The court had to assess the hypothetical lawful process objectively, but could not assume the role of the planning decision-maker or resolve disputed planning and expert matters as if determining the merits ([27]-[28], [71]).
3. The planning officer had misunderstood Condition 4. That condition addressed sound insulation between premises sharing a party element, particularly noise from ground-floor commercial uses to residential units above. It did not address noise from the claimant’s external live music and bar operations. The officer had not expressly found those external impacts acceptable, and it was unsafe to infer that he had properly evaluated them or considered necessary conditions ([60]-[65]).
4. The noise recommendations in the submitted assessment were not incorporated into the prior approval through Condition 5. They were insufficiently certain and precise, and the Town and Country Planning (General Permitted Development) (England) Order 2015 fixed the scope of prior-approval issues exclusively by its terms. Concerns principally relating to traffic and street noise fell outside paragraph MA.2. Only secondary glazing shown on the plans formed part of Condition 5 ([66]).
5. The claimant had suffered real prejudice because consultation might have prompted expert evidence, further investigation or additional conditions. The interested party’s loss of the fallback position was a disadvantage, but did not outweigh that prejudice. Declaratory relief was inadequate and a quashing order was appropriate; relief was not barred by section 31(2A) ([67]-[75]).