R Helen Elizabeth Kinsey v London Borough of Lewisham
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWHC 1286 (Admin) |
| Date | 18 May 2021 |
| Docket Number | Case No: CO/8/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1286 (Admin)
Mrs Justice Lang DBE
Case No: CO/8/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood OBE QC (instructed by Harrison Grant) for the Claimant
Saira Kabir Sheikh QC and Charles Merrett (instructed by Womble Bond Dickinson (UK) LLP) for the Defendant
Sasha White QC and Matthew Henderson (instructed by Comptroller and City Solicitor) for the Interested Party
Hearing dates: 27 & 28 April 2021
Approved Judgment
The Claimant challenges the decision of the Defendant (“the Council”), dated 20 November 2020, to grant planning permission for the demolition of Mais House and Otto Close garages, and for redevelopment to provide 110 residential units in a part four, six and seven storey building and a part two and three storey terrace building, and associated development, at Sydenham Hill Estate, London SE26 (“the Site”).
The Council is the local planning authority for the Site. The Interested Party (“the IP”) is the owner of the land and the applicant for planning permission.
The Claimant lives with her family in a rented flat in Otto Close which is particularly affected by the proposed development. She is a member of the Sydenham Hill Residents Steering Group. According to Mr Murtagh, the IP's Assistant Director of Housing, the Group was established by the IP in December 2018 to ensure meaningful resident consultation and effective participation in all aspects of appraising and implementing the proposals for the Site.
Permission was granted on the papers on 10 February 2021.
Grounds of challenge
The Claimant's grounds of challenge may be summarised as follows:
Ground 1:
The Council erred in law and acted without regard to material considerations in failing to apply the considerable weight to harm to listed buildings and the conservation area as required by sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings and Conservation Areas Act 1990”) and by the National Planning Policy Framework (“the Framework”), and failed to consider the extent of the less than substantial harm caused to those designated heritage assets as required by the Planning Practice Guidance (“PPG”).
Ground 2
The Council failed to take into account, as it was not reported to the Planning Committee, that the Council's Senior Conservation Officer (“SCO”) objected to the scheme and omitted significant parts of her advice, in breach of:
i) the duty to take into account a material consideration;
ii) the duty to take into account the product of a consultation which it had carried out;
iii) the duty to have special regard to the effect of the proposal on listed buildings and conservation areas under sections 66 and 72 of the Listed Buildings and Conservation Areas Act 1990 and the Framework;
iv) the PPG's advice on considering the degree of less than substantial harm;
Ground 3
The Claimant did not pursue this ground.
Ground 4
The Council failed to make background papers available, in particular the SCO's response, on request or at all, in breach of the Local Government Act 1972 (“LGA 1972”) as modified by the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020.
Ground 5
Given the Council's conclusions that it is preferable that the scheme should not appear from Dulwich Park above the tree canopy, but that it does so appear, the Council's conclusion that the development ‘would make a positive contribution to the character and appearance of the surrounding area’ was not rationally open to it.
Ground 6
The Council failed to ask the Design Review Panel to consider the planning application, in breach of the legitimate expectation created by the Council's Statement of Community Involvement, paragraphs 6.9 and 6.10. Consultation with the Panel at the pre-application stage was insufficient when the Panel remained critical of the pre-application schemes.
Application to amend the claim
At the commencement of the hearing, I heard and determined the Claimant's application to amend the Statement of Facts and Grounds.
I granted the Claimant permission to abandon Ground 3 (failure to take into account the objection of the Twentieth Century Society), in the light of the Council's disclosure of documents made available to Members of the Planning Committee, which included the Twentieth Century Society's objection. The Claimant maintained her criticism of the manner in which the Officer Report (“OR”) dealt with the Twentieth Century Society's objection, under Ground 1.
The Claimant also applied for permission to add a new ground in the following terms:
“the Council failed to make all of the report to the Committee on the application available to the public, whether before or after the meeting, in breach of the Local Government Act 1972, ss 100B, 100C as modified by the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020;”
I refused permission on the ground that the new ground was unarguable, and the Claimant had delayed unreasonably in raising it.
The Planning Committee considered the application for planning permission at its meeting on 27 August 2020. The agenda for the meeting listed seven documents as “restricted enclosure”, which meant that they were not made available to members of the public. Those documents comprised the officer's presentation on the application and six “public comments packs”, namely, some 420 pages of consultation responses and other comments by individuals and organisations. The reason given for the restriction was that, by virtue of paragraph 3 of Part 1 to Schedule 12A of the LGA 1972, it was information relating to the financial or business affairs of any particular person (including the authority holding that information).
Section 100B LGA 1972 provides that copies of the agenda and any report for the meeting shall be open to inspection by the public (subject to an exclusion in subsection (2) for reports which relate to items in private sessions). Section 100C makes similar provision for inspection of agendas and reports after meetings, as well as the minutes of the meeting. The term “report” is not defined.
The Claimant submitted that, in this context, the term “report” includes any material provided to the Committee by officers for consideration of the item. In my judgment, the term “report” should be given its natural and ordinary meaning, having regard to its statutory context. In the context of local authority Council and Committee meetings, a report means an account given to Members, which presents information and perhaps recommendations, in respect of an item of business on the agenda. Typically, such a report will be an officer's report. An officer's report may also include appendices containing documents. Those documents would form part of the report for this purpose. However, I do not consider it is arguable that these “public comments packs” were part of the officer's report. Nor is it arguable that the consultation responses and other comments on the planning application were themselves reports for the purpose of sections 100B and 100C LGA 1972, applying the natural and ordinary meaning of the term “report”. Parliament could have enacted a provision requiring all documents before the Committee to be made available for public inspection but instead it limited the extent of the inspection to the agenda and reports.
I also accepted the submission made by the Council and the IP that the Claimant delayed unreasonably in making the application to amend. Although planning permission was not granted until 20 November 2020, it was apparent from the Agenda for the meeting on 27 August 2020 that seven documents were withheld from the public. So this ground could have been pleaded when the claim was filed on 31 December 2020. The Claimant's solicitor requested disclosure of the restricted documents in an email of 11 January 2021, and they were provided by the Council, with redactions, on 1 February 2021. So the Claimant ought to have applied to amend during February 2021. However, it appears that the documents were not downloaded by the Claimant's solicitors until mid-March 2021, when the Detailed Grounds of Resistance were served. The Claimant's lawyers submitted it was essential for them to see the 44 pages which have been redacted, but the Claimant's solicitor did not request the documents in unredacted form until 6 April 2021.
The application to amend was made on 7 April 2021. By then the hearing date of 28 and 29 April 2021 had been fixed. Instead of applying for the application to amend to be dealt with as a matter of urgency in advance of the hearing, the application requested that it be dealt with at the beginning of the substantive hearing. In consequence, if I had granted the application to amend, it would have been necessary to adjourn the substantive hearing. I would have had to rule on the disputed redactions, allow time for disclosure of any unredacted documents, and give the Council and the IP time to amend their Detailed Grounds to respond to the new ground, and file evidence in response, if so advised. The adjournment would have been prejudicial to the parties and a waste of court time. No adjournment would have been necessary if the Claimant's representatives had acted more expeditiously. For these reasons, I consider that the Claimant's delay was unreasonable and the application to...
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