Introduction

Anyone who has been involved in planning related judicial review proceedings will know that it can be a difficult and uncertain process.  Certain legal principles that come under close scrutiny from the courts are inherently soft edged making concrete predictions of the outcome difficult and perhaps susceptible to matters such as which judge gets to hear the case. Sometimes, judicial reviews can be launched which are a last throw of the dice for opposition groups.

However, in the planning context,  it should always be remembered that the central function of the Court is to provide a check and balance where planning procedures have clearly not been followed correctly and prejudice to other parties has arisen. Developers or local planning authorities that take a laissez faire approach to planning procedure risk inviting the intervention of the Court.

The Koko JR

BLP has recently acted on one such case on behalf of Obar Camden Limited (“Obar”) who operate the well-known Grade II listed night club and live music venue in Camden known as “Koko” (formerly The Camden Palace Theatre).  Obar brought a judicial review in respect of a planning permission granted by London Borough of Camden for the conversion of a public house adjacent to Koko into residential flats.

A number of aspects of the handling of the application – relating to assessment of heritage and noise impacts – went badly wrong, which led to the High Court quashing the planning permission.  Justice Stewart found four out of five grounds in the claim in Obar’s favour, holding that:

  1. A fundamental flaw in the application process was that no assessment of heritage assets (including the Grade II listed Koko night club) had been undertaken.  In the absence of such an assessment, it was not possible for the planning authority to have lawfully come to a conclusion about the harm the proposed development would cause to such assets.  Bearing in mind that Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires “special regard” to be given to the desirability of preserving a listed building or its setting, this was fatal.  The Court rejected a submission for the Council that members of the committee should be treated as an informed membership with an implicit working knowledge of such statutory tests and the omissions in the Officer report should be viewed in that context.  The Court held that failure to deal with these matters in the Officer’s report could not be glossed over in this way.
  2. In respect of noise, correspondence and internal communications between Council officers (obtained by BLP pursuant to a request under FOAI/EIR) revealed that the noise officer had specific concerns regarding the scope of the noise assessment submitted with the application.  These unresolved noise concerns were not reported to members in the Officer’s report, which led to the judge concluding that the report “significantly misled” the committee on material matters.
  3. In addition, the Committee resolved to grant planning permission with specific conditions identified.  Following the Committee, officers amended the wording of the conditions as part of a further consideration of noise considerations but failed to return the matter to committee.  The judge held that, given that the committee resolution required the conditions to be imposed as set out in the minutes, officers had no power in this instance to re-draft the conditions.
  4. Finally, the Judge found that the noise-related conditions imposed on the permission were irrational.  This was on the basis of evidence from Obar’s noise consultant that the conditions failed to achieve their aim of protecting future residents from noise from Koko.  The Council had taken no steps to refute this evidence and the Court rejected the Council’s submission that this was a merits point.

Comment

It is well understood that the courts will not intervene in matters of planning judgement and indeed in this case the local authority sought to gloss over the flaws in the process largely on that basis.  However, it was clear to the Court that proper procedures had not been followed, internal consultation responses from specialist officers had not been reported accurately to the committee and post committee procedures had also not been properly followed.

Stepping back, this case illustrates the important role that judicial review still has to play in the planning process and that, from a third party perspective, the Court is not there to simply “rubber stamp” local authority decisions; the Court will intervene and quash planning decisions where something has gone wrong in law, as it plainly had here.

From a developer’s perspective, the case highlights the importance of ensuring application documents properly consider matters required to be assessed by law and, from a local authority perspective, the need for a rigorous and accurate handing and reporting of the consultation process.  It also highlights that no matter how thoroughly a developer may prepare for an application, there are swathes of legal risk in the application process, which are primarily dependent upon the local planning authority carrying out its duties lawfully.

Obar Camden Limited v London Borough of Camden [2015] EWHC 2475 (Admin)