Code Students (Nottingham) Limited, R (on the application of) v Nottingham City Council

Permission for judicial review requires an arguable ground with a realistic prospect of success which merits full investigation, subject to discretionary bars. A breach of the background-paper duty in the Local Government Act 1972 does not automatically invalidate a planning decision. The court must consider prejudice and whether it is highly likely that the outcome would not have been substantially different. Planning authorities may treat applications differently where material distinctions exist. Consistency requires reasons for departure principally in materially like cases. The listed-building duty requires special regard and considerable weight to heritage harm, but lawful planning judgment may balance that harm against public benefits. The court will not re-weigh planning matters or convert disagreement with planning judgment into an arguable public-law error.

This was a renewed application for permission to apply for judicial review of the Defendant’s decision to grant planning permission for student accommodation at the former police station and fire brigade stores in Nottingham. The initial permission application had been refused on the papers by Steyn J.

The Claimant had separately applied for permission for its own student-accommodation scheme, which had been refused and was subject to a planning appeal. It challenged the later permission on five grounds concerning publication of background documents under the Local Government Act 1972, inconsistent decision-making, listed-building duties, failure to consider material matters, and wind mitigation. The court also considered standing and the asserted alternative remedy. The central issue was whether any ground disclosed an arguable public-law error warranting full investigation.

The renewed application was refused. The court found that none of the five grounds disclosed an arguable error of law or principle meriting a full judicial-review hearing.

1. Background documents. Applying the permission approach supported by Sharma v Brown-Antoine [2006] UKPC 57 and Ramdass v Minister of Finance [2025] UKPC 4, the court held that non-compliance with the background-paper duty in the Local Government Act 1972 did not automatically invalidate the decision. The officer’s report had summarised the relevant matters. The Claimant had not sought the documents or objected before the committee meeting, and its proposed representations concerned comparison with its own scheme rather than the merits of the challenged development. There was no arguable prejudice, and it was highly likely that earlier publication would not have produced a substantially different outcome.
2. Consistency. The court applied North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137. Previous decisions may be material, and materially like cases should generally be treated alike, but a decision-maker may exercise its own judgment and distinguish cases on relevant facts. The two schemes differed materially in site, scale, height, building reuse, accommodation mix, servicing requirements, objections and potential impacts. Ground 2 was therefore not reasonably arguable.
3. Heritage and material considerations. The duties under the Planning Listed Buildings and Conservation Areas Act 1990 had been addressed. The report recognised the strong presumption against harm to a listed building or its setting and the need to give considerable importance and weight to less-than-substantial harm. The officer independently concluded that the public benefits, including heritage benefits, outweighed the harm. Matters material to the Code Scheme did not automatically arise for the Guildhall Scheme, while highway and servicing issues were addressed. Grounds 3 and 4 failed.
4. Wind and standing. The wind assessment provided a rational basis for accepting landscaping as mitigation, and no error in the planning judgment was identified. Ground 5 was not arguable. The Claimant nevertheless had sufficient interest under section 31(3) of the Senior Courts Act 1981, because it had a real interest as a proposed developer in a level playing field. The parties were invited to agree the consequential order.

This was a first-instance renewed permission application, not an appeal. Steyn J considered the original application on the papers and refused permission by an order dated 8 May 2026, sealed on 14 May 2026. The present court reconsidered the application at an oral hearing and refused permission.