10 C O N T E X T 1 3 1 : S E P T E M B E R 2 0 1 3 LEGAL BRIEFING Judicial review of planning decisions Recent planning appeals have highlighted the need for local communities and advisory groups to question the planning process through the courts, writes Fiona Deaton. Conservation advisory bodies need to ensure that they have clear and effective communication with their planning authority if their representations are to be taken into account in planning decisions.More than a year since the publication of the National Planning Policy Framework (NPPF), its critics may be justified in claiming that it favours developers to promote economic sustainability in a climate of austerity. Recent planning appeals have highlighted the need for local communities and advisory groups to question the planning process through the courts, with judicial review increasingly used as the mechanism to get their voices heard. Planning consent for the redevelopment of Twickenham Railway Station was granted in March 2012 but delayed while the council’s decision-making process was examined first in the High Court and then again in the Court of Appeal.A local resident and campaigner tried to obstruct plans for the redevelopment, claiming that relevant considerations had not been taken into account by the London Borough of Richmond upon Thames before granting planning consent for the project. Objections were based on an alleged lack of regard given to a report produced by the Twickenham Advisory Panel (TAP), specifically set up by the council to advise on development matters. The claim for judicial review of the grant was based on the lack of material consideration given to the report when considering the planning application. While theTAP report was submitted on the same date that the officers’ main report to the planning committee was published, it had been sent to the leader of the council and other officers, who were aware that the report had been prepared in time for the planning committee meeting 10 days later.At the meeting, an addendum to the officer’s report had been included on the TAP report. It stated: ‘This response has not been submitted against the planning application or formally to planning officers and as such the comments therein are not considered material to the consideration of this application’. However, Lord Justice Richards stated that it was clear that the TAP report did relate to the planning application and he was ‘deeply unimpressed by the way the council handled theTAP report’ and ‘very surprised that the council officers advised members of the planning committee to leave theTAP report out of consideration’. Despite these comments, Lord Justice Richards dismissed the appeal in April, surmising that there was no real possibility that the planning committee would have reached a different conclusion if they had taken the TAP report into account. It therefore was not a failure to have regard to a material consideration and did not render the grant of planning permission unlawful. This begs the question in the planning process: what weight should be given to reports from advisory bodies, and when? PPS5, paragraph 59, encourages engagement with local authority specialists as it ‘can be particularly helpful in developing an understanding of significance and in identifying the level of information needed to support an application’. It also advocates consulting with national amenity societies, groups or individuals and conservation area advisory committees as sources with links to a site’s past and valuable local knowledge. That does not mean that the opinions of advisory bodies will be taken into consideration, especially if they are not statutory consultees.As Lord Justice Richards pointed out in theTwickenham case, the views ofTAPwere worthy of respect but ‘its role and remit did not give it anything like the status of a statutory consultee’. Other judicial review cases would appear to highlight the marginalisation of statutory consultees concerned in planning applications entailing regeneration developments. Another Court of Appeal case, heard inDecember 2012, rejected a challenge by the Bermondsey Village Action Group to the London Bridge station redevelopment. One of the claims alleged that the environmental statement had failed to consider alternative proposals to the redevelopment proposals, which include demolishing buildings within the conservation area. The court determined that the validity of the environmental statement was not undermined, regardless of its shortcomings. The most notable building affected by the development proposals is the South Eastern Railway Office, known as London’s flat-iron building. Despite English Heritage agreeing that its features were compatiblewith commercial properties of the period with some historic significance, making a positive contribution to the character of the conservation area, it was turned down for listing in 2011. A judicial review case has been brought by Westminster City Council and English Heritage objecting to the controversial Elizabeth House development at London’sWaterloo.
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