James Francis Patrick Monahan, R (on the application of) v London Borough of Camden

There is no general rule that alternative development schemes are mandatory material considerations in planning decisions. Alternatives must be explored where required by statute or policy, or where their obvious materiality makes it irrational to ignore them. A policy requirement to explore alternatives may be satisfied by consideration during the evolution of the scheme before the final application is submitted.

A planning authority must consider a site-specific allocation policy, including its heritage provisions, even where other policies address similar matters. An omission may nevertheless be immaterial where it is highly likely that the outcome would not have been substantially different, applying section 31(3)(d) of the Senior Courts Act 1981.

The claimant, a local resident, challenged the defendant council’s grant of planning permission and listed building consent for the redevelopment of Selkirk House and adjoining buildings at the eastern end of New Oxford Street.

Ground 1 alleged failure to consider alternatives to the proposed tower’s height, contrary to London Plan Policy D9(C)(1)(d). Ground 2 alleged failure to have regard to the council’s Site Allocations policy for the West Central Street part of the site, which required heritage harm to be avoided.

The court considered whether either ground disclosed an arguable error of planning law with a realistic prospect of success.

1. Permission refused on both grounds. The court could not substitute its own planning judgment for that of the council. Permission would be granted only if the decision disclosed an arguable error of planning law.
2. There is no general legal principle that alternative schemes are mandatory material considerations, even where adverse effects are outweighed by benefits. Alternatives become mandatory where required by statute or policy, or where they are so obviously material that it would be irrational not to consider them, following R (Substation Action Save East Suffolk Limited) v Secretary of State for Business Energy and Industrial Strategy [2022] PTSR 74 and Derbyshire Dales DC v Secretary of State for Communities and Local Government [2010] 1 PTSR 19.
3. London Plan Policy D9(C)(1)(d) required alternatives to the proposed tall building to have been explored by the time proposals were presented. That requirement could be met by considering earlier iterations of the scheme, including reductions in height and massing, retention or redevelopment of the existing building, and other design changes. The officer’s report gave a rational account of that evolution. The claimant’s alternative scheme had also been circulated to committee members and referred to at the meeting, so it had not been overlooked.
4. The interpretation of planning policy is a question of law, but its application in the particular case is a matter of planning judgment subject to irrationality review, following Tesco Stores Ltd v Dundee CC [2012] PTSR 903. The council had lawfully applied Policy D9.
5. The officer’s report ought to have considered the heritage provisions of the site-specific Site Allocations policy. Its omission was arguably significant because the policy formed part of the development plan and might have affected assessment of conformity with the development plan as a whole.
6. Nevertheless, applying section 31(3)(d) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different. The committee had considered substantially similar heritage policies and concluded that the benefits outweighed the less than substantial heritage harm. Permission was therefore refused on Ground 2 as well.

First-instance judicial review permission decision. Permission had previously been refused on the papers by Mould J on 14 June 2024. The renewed application was refused by the High Court.