Kenneth Thomas, R (on the application of) v London Borough of Lewisham

A planning policy requiring purpose-built student accommodation to be secured for students by an agreement with a higher education provider does not, without clear words, require a binding nominations agreement before permission is issued. Permission and enforceable conditions may secure student use, while evidence of an affiliated provider and a commitment to have an agreement from initial occupation can satisfy the policy. Supporting text and guidance inform interpretation but cannot add a policy requirement. Planning obligations and relocation arrangements are not rendered unenforceable merely because assistance began before permission or because most occupiers had left. The judicial review claim was dismissed.

The claimant sought judicial review of the council’s grant of planning permission for the redevelopment of Scott House into purpose-built student accommodation, commercial space and offices. The interested party was the developer. The permission was issued after the committee had resolved to approve the application and after the local plan had been adopted.

Ground 1 alleged that local-plan policy HO7 required a binding nominations agreement with a higher education provider before permission, and that the Community Infrastructure Levy Regulations 2010 and section 38(6) of the Planning and Compulsory Purchase Act 2004 were therefore breached. Ground 2 alleged irrationality and failure to consider the effect of tenant evictions on the enforceability of relocation obligations. The central issues were the timing required by policy HO7 and whether the section 106 relocation arrangements remained lawful and enforceable.

Disposition. The judicial review claim was dismissed. Both grounds of challenge failed.

1. Policy HO7 and PBSA. The requirement that accommodation be secured for student use by an agreement with one or more higher education providers did not require a binding nominations agreement to be in place before permission was issued. The policy did not specify that timing. Read with London Plan policy H15, its supporting text and the London Plan Guidance, the relevant agreement was required from initial occupation. Permission for PBSA, together with condition 3 requiring the approved student bedspaces, secured the student use. The letter from Trinity Laban was evidence of an affiliated end user.
2. Interpretation and planning obligations. Supporting text and the wider planning context were relevant to interpreting policy, but supporting text was not itself policy and could not impose an additional criterion. This approach was consistent with R (Cherkley Campaign Limited) v Mole Valley DC [2014] EWCA Civ 567. The court accepted the statutory limits in regulation 122 of the Community Infrastructure Levy Regulations 2010. On the correct interpretation of HO7, Schedule 4 to the section 106 agreement did not create the alleged error.
3. Relocation obligations. Schedule 8 imposed no limit on when section 21 notices could be served, and it did not prevent relocation assistance before completion of the agreement or approval of the Relocation Strategy. The fact that most tenants had left before permission did not itself make the grant irrational or show failure to consider an obviously material matter. The obligation remained enforceable for a tenant still in occupation and could require continuing assistance to a former tenant needing accommodation. Flexibility in departure dates and pro-rata rent satisfied the requirement for details of flexible tenancies or rents.
4. Materiality and alternative relief. The court applied the approach in R (Friends of the Earth Ltd and another) v Secretary of State for Transport [2021] PTSR 190: a matter must be so obviously material that failure to consider it is Wednesbury irrationality, not merely capable of affecting the outcome. Alternatively, under section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same. The issue was not academic merely because the tenants had left.