Davies, R (on the application of) Royal Borough of Kensington and Chelsea

In a challenge to planning permission, the court asks whether the officer’s report, read fairly as a whole, materially misled the committee on an issue bearing on its decision. An omission is material only where the advice could have affected the outcome and the error was not corrected. Decision-makers may assess the weight of planning considerations, including construction noise, provided their judgment is rational. Express reference to every policy, objection or Article 8 right is unnecessary where the report demonstrates that the substance of the issue was considered. Compliance with a basement policy does not displace other development-plan policies or require permission to be granted.

The claimant sought judicial review of the defendant local planning authority’s grant of planning permission and listed building consent for a substantial basement beneath a neighbouring dwelling in Holland Park. Construction was expected to involve demolition, percussive excavation, soil removal and sheet piling over 63 weeks.

Lang J granted permission on two grounds. The claimant alleged that the authority failed to assess construction noise properly, including under national planning guidance and Article 8 of the European Convention on Human Rights, and misunderstood Policy CL7 of the Kensington and Chelsea Local Plan 2019 as permissive. The court considered whether the officer’s report and the committee’s decision-making process disclosed either error of law.

1. Claim dismissed. The challenge concerned the legality of the decision-making process, not the merits of the planning judgment.
2. On a fair reading of the officer’s report as a whole, the relevant question was whether the report materially misled the committee on a matter bearing upon its decision, and whether the error was uncorrected and might have affected the outcome. The report addressed construction noise, living conditions, objections, expert assessments and recommended mitigation. There was no sufficient indication that the relevant policies or Article 8 rights had been overlooked.
3. The authority was entitled to regard the predicted construction noise as acceptable, taking account of mitigation and controls. The court treated the issue as one of planning judgment. There was no statutory duty to re-consult environmental health officers on the residents’ objection. The detailed noise predictions were not challenged, and the planning and environmental health officers could be taken to possess relevant expertise and to understand the legal context.
4. The report’s failure expressly to mention the Planning Practice Guidance, the noise supplementary planning document or Article 8 did not establish unlawful omission. The substance of the relevant inquiry had been undertaken, including whether interference with neighbours was necessary in the interests identified in Article 8.
5. Policy CL7 did not operate as a presumption that compliance with its basement requirements required permission. Although the policy connected basement size with construction noise, size also bore upon stability, gardens, drainage, carbon emissions and other matters. The committee’s discussion of the 50 per cent limit did not justify inferring that compliance with that figure would require permission or permit other material considerations to be ignored.
6. The court therefore rejected both grounds. Counsel were directed to file an agreed draft order, so far as possible, and written submissions on consequential matters within 14 days.

Lang J granted permission to challenge the planning permission and listed building consent on two grounds. The High Court (Administrative Court) dismissed the claim.