Carol Gurajena & Anor, R (on the application of) v London Borough of Newham

For planning consultation purposes, “adjoining” land is not limited to land sharing a boundary. It includes land that is very near to, or lies close to, the application site. The local planning authority must exercise judgment, having regard to the nature and scale of the proposal. The court will interfere only if that judgment is Wednesbury unreasonable.

Where amended or clarified plans materially alter the proposal, fairness requires the authority to consider whether consultees should be re-consulted. Re-consultation is required where the earlier plans reasonably misled consultees and the changes may generate representations they would otherwise have wished to make. Relief may nevertheless be refused under section 31(2A) of the Senior Courts Act 1981 where the outcome would highly likely have been substantially the same.

The claimants, residents of neighbouring properties, challenged the Council’s grant of part-retrospective planning permission for a rear extension, raised decking and an outbuilding. Permission for judicial review was granted on a procedural-fairness ground.

The claimants argued that the Council had failed to consult the second claimant, had frustrated a legitimate expectation arising from an earlier consultation, and had failed to re-consult after revised plans clarified the boundary fencing and altered the stair alignment. The central issues were the meaning of “adjoining” in Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, the requirements of legitimate expectation, and the duty to re-consult after material plan changes.

1. Disposition. The claim was allowed and the planning permission was quashed because the Council failed to re-consult the first claimant after plan LK-10 was revised to show the proposed east-west stair alignment.
2. Article 15 consultation. “Adjoining” in Articles 15(5) and 15(10) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 includes properties that are very near to or lie close to the application site, as well as contiguous properties. The meaning is context-dependent and may depend on the nature of the proposal. The authority must decide whom to consult. The court may interfere only where that judgment is Wednesbury unreasonable.
3. The Council was not required to consult the second claimant on the superseded plans. Her property was next-door-but-two, and the Council had consulted the immediately adjoining properties and one further property. That decision was not irrational.
4. Legitimate expectation. Consultation of the second claimant on one materially different, roof-level application did not establish a sufficiently settled and uniform practice amounting to a clear, unambiguous and unqualified promise to consult her on the later ground-floor proposal. The test in CCSU and R (MP) was therefore not met.
5. Re-consultation. Applying Holborn Studios, the confusing superseded plans reasonably led the claimants to misunderstand the proposed fencing and stair alignment. Once the revised plans clarified the proposal, the Council had to consider whether re-consultation was required. The first claimant had already stated her objections to retaining the low picket fence, so further consultation on that issue was unnecessary. The new stair, however, was materially closer to and oriented towards her property. Her specific concern had not been addressed in the delegated report, and it was realistically possible that further representations could have affected the decision.
6. The Council should also have considered whether to consult the second claimant on the amended fencing and stair. Any failure concerning her would not have justified relief because the outcome would highly likely have been substantially the same. Section 31(2A) of the Senior Courts Act 1981 did not, however, defeat the first claimant’s challenge.