Joe Cook & Anor, R (on the application of) v Royal Borough of Kensington and Chelsea

Judicial review of a planning decision concerns legality, not a merits review. Broad noise policies using terms such as “unacceptable”, “appropriate” and “reasonable” require evaluative planning judgment. They do not create an automatic prohibition on development predicted to produce a significant observed adverse effect level of noise. The decision-maker may consider reasonable mitigation and balance residual noise harm against the development’s economic and social benefits.

Planning officers’ reports should be read with reasonable benevolence, not subjected to hypercritical scrutiny. A challenge succeeds only where the report materially misleads the committee on a matter bearing upon its decision. An authority may also rely on planning judgment when deciding whether further enquiries or mitigation are necessary, provided it has sufficient material to make a rational decision.

The claimants, who lived near Atlantic House, challenged the Council’s grant of planning permission for Thomas’s London Day Schools to convert the premises into a school. They alleged that the Council misinterpreted national and local noise policies, that the officer’s report was materially misleading, that further acoustic glazing should have been secured, and that permission should not have been granted without a school street.

Permission had been refused on the papers on Grounds 2 and 3, but the renewed application was heard with the substantive claim on Ground 1. The central issues were whether the Council had committed an error of law in applying noise and transport policies, and whether its decisions on mitigation, enquiries and traffic controls were irrational.

1. Outcome. The claim for judicial review on Ground 1 was dismissed. The renewed applications for permission on Grounds 2 and 3 were refused.
2. The court’s task was to identify public law error, not to substitute its view of the planning merits. The planning officer and committee were entitled to assess conflicting acoustic evidence, interpret broad policy language in context, evaluate mitigation and balance competing considerations.
3. The national and local noise policies did not impose an absolute prohibition on development causing SOAEL noise. References to avoiding or preventing noise had to be read with the policies’ qualifications and their requirement for reasonable mitigation. The decision-maker could consider the benefits of the school when deciding whether residual noise harm justified refusal.
4. On a fair and benevolent reading, the officer had considered but rejected the Environmental Health Officer’s more restrictive view. The report explained the proposed mitigation and concluded that residual noise would be reasonably minimised and mitigated. That was a planning judgment, not a material misdirection.
5. The Council was entitled to treat acoustic glazing at 11A Douro Place as an offer which could reasonably be expected to be carried out. A condition or obligation requiring works to a neighbour’s property could fail tests of reasonableness and enforceability where the neighbour’s consent was required. The claimants had no surrogate standing to challenge the decision concerning that property alone.
6. The adequacy-of-enquiry test was whether the inquiry was so inadequate that no reasonable planning authority could have considered that it possessed sufficient material to decide the application. The Council had expert acoustic reports, the EHO’s response, mitigation proposals and the officer’s assessment, so the test was not met.
7. The Council was not required to secure a school street. It lacked power to implement one under the planning legislation, which required the highways statutory procedure and consultation. The conditions, planning obligation, travel plan and traffic management plan provided a rational basis for the committee’s decision.

This was a first-instance judicial review claim in the High Court Planning Court. Permission was granted on Ground 1 and refused on Grounds 2 and 3 by Eyre J on 14 September 2023. The renewed applications on Grounds 2 and 3 were heard with the substantive claim.