Save Smallbrook, R (on the application of) v Birmingham City Council

Supplementary planning documents are not part of the statutory development plan and cannot themselves provide a local-plan policy basis for a specific requirement to consider embodied carbon. They remain material considerations where relevant.

An officer’s report need give intelligible and adequate reasons on the principal important controversial issues, but need not address every material consideration in detail. There is no general rule that alternative schemes are mandatory material considerations. Under the EIA Regulations 2017, only reasonable alternatives relevant to the development and its specific characteristics require consideration.

Save Smallbrook sought permission to apply for judicial review of Birmingham City Council’s decision to grant hybrid planning permission for demolition of the Ringway Centre and its replacement by residential and commercial development.

The claimant alleged errors concerning embodied carbon, building reuse, and the adequacy of reasons given for rejecting an alternative redevelopment proposal. Permission had previously been refused on the papers by Mould J. The renewed application concerned whether either ground was arguable and whether any error was highly unlikely to have affected the outcome.

1. The challenge concerning embodied carbon and reuse was unarguable. Policies TP1 to TP3 of the Birmingham Development Plan did not specifically require consideration of embodied carbon. The Birmingham Design Guide was a supplementary planning document, not part of the statutory development plan or a local-plan policy, although it could be a material consideration. The Council had considered building reuse at length and complied with the relevant Design Guide requirement.
2. The officer’s reports were intelligible and adequate. The weight given to competing planning considerations was a matter for the Planning Committee’s planning judgment, and the Court would not substitute its own judgment or characterise the Council’s conclusion as irrational. In any event, the Committee had considered the application on the basis of a strong presumption favouring reuse and still resolved to grant permission.
3. There is no general common-law duty to give reasons for granting planning permission. Where reasons are required, they must enable the reader to understand the decision and the conclusions on the principal important controversial issues, but need not address every material consideration.
4. The EIA Regulations 2017 impose limited obligations concerning alternatives. The counterproposal was indicative and inchoate. The Council was entitled to conclude that it was not a reasonable or realistic alternative requiring assessment against the proposed scheme or detailed reasons.
5. Alternatively, section 31(3D) of the Senior Courts Act 1981 applied because it was highly likely that planning permission would have been granted despite either alleged error. Permission to apply for judicial review was refused.

First-instance renewed application for permission to apply for judicial review. Permission had been refused on the papers by Mould J on 17 June 2024. The renewed application was refused by the High Court (Administrative Court).