Zipporah Lisle-Mainwaring, R (on the application of) v The Royal Borough of Kensington and Chelsea

A local planning authority which receives a valid application for approval of details required by a planning condition generally has a continuing duty to determine it. The fact that the application was made before the planning permission’s implementation period expired but determined afterwards does not, without more, create a discretion to decline determination.

In reviewing planning committee advice, the question is whether the officer’s report and any oral supplementary advice, read fairly and benevolently together, materially misled the decision-makers on a matter bearing on the decision. A possible discretionary alternative is not necessarily a material consideration, particularly where no party placed it before the authority and it was not obviously material.

The claimant sought judicial review of the Defendant’s approval of a construction traffic management plan submitted to discharge condition 3 of planning permission for redevelopment of a residential site. The permission required development to begin within three years. Works were carried out shortly before expiry, and the application to approve the traffic management plan was determined afterwards.

Permission for judicial review was ultimately granted on the ground that the Defendant had failed to consider its ability, acting reasonably, to decline to determine the application. The central issues were whether such a discretion existed, whether the officer’s report or oral advice materially misled the planning committee, and whether the alleged discretion was a material consideration.

1. Claim dismissed. The officer’s report and oral advice did not materially mislead the committee. Read in context, the advice correctly identified the application before the committee as one for approval of the construction traffic management plan and the acceptability of that plan as the decisive issue.
2. Advice in a planning officer’s report must be assessed on a fair reading of the report as a whole. Oral advice given at a committee meeting should ordinarily be read as supplementing the written advice, unless it is said to change, correct or replace it. The obligation to treat advice with reasonable benevolence applies with particular force to oral advice.
3. Even assuming that the Defendant had a discretion to decline to determine the application, that discretion was not a mandatory material consideration. It was not obviously material because neither the claimant nor any other party placed it before the Defendant, and the authority was not required to search for alternative approaches to determining the application.
4. The court distinguished Ashchurch because that case did not concern failure to consider a discretionary material consideration.
5. In any event, the court held that the Defendant had no such discretion. The authorities establish a continuing obligation to determine a valid planning application and an application for approval of reserved matters. The same principle applies to an application for approval of details required by a planning condition. The obiter observations in Whitley did not establish a power to decline determination. They could instead be read as permitting refusal of approval where appropriate.
6. The question of relief did not arise. Had it arisen, relief would have been refused under section 31(2A) of the Senior Courts Act 1981 because it was highly likely that the outcome would not have been substantially different: once the CTMP was found acceptable, approval was highly likely even if the Defendant had possessed a discretion not to determine the application.

First-instance judicial review claim. Permission was refused on the papers and after an oral hearing, but Stuart-Smith LJ later granted permission and ordered the claim to return to the Planning Court.