In Obar Camden Limited v The London Borough of Camden [2015] EWHC 2475 (Admin) the Planning Court (part of the Administrative Court) quashed the grant of planning permission allowing for a public house to be converted into a residential development as the planning committee had failed to take into account various material considerations and had done nothing to refute the Claimant's allegation of irrationality.

1. Key Points

  • although the author of a report to an expert body can assume a certain level of knowledge, failing to draw to the body's attention unusual or specific material considerations will likely mean the report is flawed;
  • the mere fact that a report to a decision making body does not bring to their attention material issues does not necessarily mean the body's decision is flawed if, in fact, the decision makers did consider these issues; and
  • failing to respond substantively to all points of a Claimant's case may result in a finding against the Defendant, even when the threshold the Claimant has to surpass is high, as the Court will not assume there were valid reasons for a decision unless the Defendant presents these.

2. Background

Camden Borough Council had granted a full planning permission, subject to certain conditions, authorising the change of use of the Hope and Anchor public house into a mixed retail and residential development. The planning committee (the "Committee") reached this decision after considering the report on the proposed development put forward by the senior planning officer (the "Report").

The owner of KOKO, a performance space and nightclub that shares a party wall with the development site, sought to judicially review this decision. In doing so, they put forward a number of grounds of claim, submitting that:

  1. the Report did not highlight the need to have special regard to the desirability of preserving a listed building and conservation area despite the fact that both statute and policy required the Defendant to have regard to these;
  2. the Report had not properly considered the impact of all sources of noise and vibration; and
  3. the conditions placed on the permission, which required the developer to use improved insulation against sound and vibration, were irrational as they could not achieve their stated objective.

In response, the Defendant sought to rely on the fact that the Committee were a panel of experts who did not need issues to be specifically drawn to their attention in the Report.

3. The Decision

The Court found in favour of the Claimant on all the above grounds and quashed the Defendant's grant of planning permission.

Material Considerations

Stewart J noted, having examined the case law, that a report to an experienced panel would not be expected to include "excessive and unnecessary detail" as it could be assumed that the panel held a working knowledge of common statutory tests. However, he held that the Report still did not contain sufficient information as:

  1. it failed to draw to the Committee's attention the statutory requirement to have special regard to preserving the listed building or its setting, when it could not be assumed the Committee would be aware of this; and
  2. it omitted important information, such as the environmental health officer's concerns that the Report ought to have considered noise from patrons and traffic, which resulted in the Report giving an impression that "significantly misled the Committee about material matters".

These failures of the Report could have been cured, avoiding a finding that the Committee's decision was flawed, had the issues in question been corrected at the meeting of the Committee. However, these issues had not, in fact, been considered at the committee meeting and therefore the Court held the Committee's decision was flawed.

Irrationality

Recapping case law in this area, Stewart J noted "where an expert tribunal is the fact finding body, the threshold for Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount".

However, in this case the Claimant had made extensive submissions on the irrationality of the planning conditions, providing expert evidence that these conditions could not satisfy their stated aims. By contrast, the Defendant dismissed this as an argument as to planning merits which ought not to be considered, but failed to offer any evidence to show that the conditions were rational. Stewart J noted that "a brief witness statement setting out in summary why issue was taken with [the Claimant's expert]'s conclusions may well have been sufficient" to defeat the claim of irrationality; however, in the absence of this, the Court had no choice but to find the conditions irrational.

4. Comment

The judgment emphasises the importance of considering all aspects of the other party's case, since a failure to substantively respond to a relatively weak or secondary argument may result in a finding in the other party's favour. Public bodies should not therefore be complacent when faced with allegations of irrationality, despite the high threshold for such allegations to succeed.

This also brings to the fore the importance of distinguishing between reports, opinions and recommendations which are made to a decision making body and the body's decision itself. This case makes clear that proper consideration of relevant factors at the decision making stage can render a decision valid even when reports made to the decision making body are flawed, either because they fail to take into account material consideration or give an inaccurate impression.