Royal Mint Court Residents’ Association, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Ors

On an application for permission to pursue a statutory planning review, a consideration is mandatory only where it was irrational for the decision-maker to leave it out of account. The question is whether no reasonable decision-maker would have failed to consider it in the circumstances.

National security measures adopted under separate national security powers were not mandatory material considerations for the planning decision where the planning authority had considered the relevant development-related security concern, the responsible bodies had raised no objection, and the measures were directed at potential unlawful activity. Costs and any physical works could be addressed by the responsible Secretary of State and ordinary regulatory regimes. In any event, the planning decision would inevitably have been the same.

The claimant, a residents’ association, sought permission to pursue ground 4 in a statutory review under section 288 of the Town and Country Planning Act 1990. The challenge concerned the Secretary of State’s grant of planning permission for a proposed Chinese embassy at Royal Mint Court.

The ground alleged that the planning decision unlawfully failed to consider national security mitigation measures relating to nearby telecommunications cables. The claimant identified the possible recovery of costs from the developer, the public cost of the measures, and possible land-use consequences. The court had to determine whether ground 4 was arguable and, alternatively, whether any omission could have affected the decision.

1. Permission refused. Ground 4 was not arguable and was not referred to the later rolled-up hearing.
2. The applicable test was whether it was arguable that the Secretary of State irrationally failed to take account of a material consideration. The relevant question was whether no reasonable decision-maker would have failed to consider the matter in the circumstances, applying the approach in DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] P.T.S.R. 2063. The court considered that this conclusion was unaffected by any issue of deference.
3. The Secretary of State’s decision letter had accepted that the proximity of the cables and development-related national security concerns were capable of being material planning considerations. However, neither the Home Secretary nor the cable operators had objected to the development on the basis of its impact on the cables. Whether national security required works to the cables was a matter for the Home Secretary under her national security powers, not for the planning decision-maker.
4. The proposed considerations concerning payment of the mitigation measures by the developer and the cost to the public purse were matters for the Home Secretary. It was not irrational for the planning decision-maker to leave them out of account when no recovery had been sought and identifying the costs might disclose the nature of national security measures.
5. Any land-use consequences, including possible roadworks affecting residents, could be dealt with under the ordinary regulatory requirements applicable to physical works. They did not make the measures mandatory considerations in the embassy planning decision.
6. Alternatively, applying the no-difference principle in Simplex GE v SSE [2017] PTSR 1041, the result would inevitably have been the same. It was fanciful to suggest that the planning Secretary of State would have required the developer to pay for measures addressing potentially unlawful conduct which could not be specified or costed without risking disclosure of national security information. A section 106 or CIL obligation and a Grampian condition were therefore unavailable on the facts assumed at the permission stage.

The application for permission to rely on ground 4 was dismissed.