In R. (on the application of Spitalfields Historic Trust Ltd) v Mayor of London [2016] EWHC 1006 (Admin) the High Court invoked recent reforms introduced by the Criminal Justice and Courts Act 2015 which mean the High Court can no longer grant relief in a judicial review if the outcome of a decision making process is highly unlikely to have been affected by the alleged legal flaw in that process.

Key Points

  • The Criminal and Justice Courts Act 2015 introduced the 'no difference' principle by inserting new provisions into s31 Senior Courts Act 1981.
  • If it appears to the court to be 'highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred' then the court must refuse relief, unless 'for reasons of exceptional public interest' the granting of relief is appropriate.
  • This 'no difference' principle has previously only been considered as relating to minor procedural defects, aimed at preventing claimants succeeding on what could be regarded as technicalities.
  • In R. (on the application of Spitalfields Historic Trust Ltd) v Mayor of London [2016] EWHC 1006 (Admin) however the court's use of the principle to dismiss the application for judicial review suggests a potentially broader application of the new rule.

Background

British Land Property Management Limited ("BLL") sought permission for a large scale development in the City of London. The claimant, Spitalfields Historic Trust Limited ("Spitalfields"), objected to the proposal on several grounds.

The development was initially refused planning permission by the London Borough of Tower Hamlets. Despite written protests from Spitalfields, under Article 7 of the Town and Country Planning (Major of London) Order 2008 the Mayor directed that he take responsibility for the consent applications. This was on the grounds that the development fulfilled the criteria under Article 7; it would have a significant impact on the implementation of the London Plan; it would have significant effects on more than one borough; and there were sounds planning reasons for the Mayor's intervention. A report was produced attached to the letter of direction setting out in detail the reasons for the Mayor's intervention and the test under Article 7.

The Mayor subsequently resolved to grant permission.

Decision

Spitalfields had four grounds of complaint:

Ground 1 concerned a letter sent by Spitalfields to the Mayor urging him not to issue a direction on the application. Spitalfields argued there was no evidence that the Mayor had seen or had regard to this letter before taking his decision; this meant the Mayor had failed to have regard to a material consideration, because the letter raised significant objections to passing the determination to the Mayor.

Gilbart J stated that while it was unfortunate that it had been suggested that the Mayor had read the relevant letter when in fact it appeared he had not, the issues raised by Spitalfields were dealt with comprehensively in the Mayor's subsequent report. Reading the letter would not have led to a different decision being made.

Grounds 2 and 3 asserted that the Mayor had misinterpreted the criteria laid down by Article 7 and that his decision was inadequately reasoned. Spitalfields argued that the scheme would not have a significant effect on the London Plan or other London Boroughs, and therefore the Mayor should not have taken over the determination of the planning application.

The court disregarded the criticisms concerning the development's contribution to the London Plan and its effect on London boroughs as the Mayor's report was in most respects 'impossible to criticise' and dealt with all objections well. The only exception to this related to a point where the court took the view that the outcome would 'inevitably have been the same'.

Ground 4 centred around an email sent by an officer of the Greater London Authority ("GLA") to BLL's consultants on the same morning that GLA received written notice of the resolution from Tower Hamlets to refuse planning permission. This email stated that the Mayor's report would advise that the Article 7 criteria had been met. Spitalfields noted that the officer was required to address the matter with an open mind and without predetermination, and in the circumstances he had clearly not had time to consider the matter fully before he sent this email, apparently indicating that he had already made his decision.

Gilbart J noted that the relevant officer was the most junior of four officers who signed the report. He stated that even though it was 'unwise' of the officer to have sent the email before considering all the material from Tower Hamlets, there was nothing to prevent planning officers forming opinions and exchanging information. The officer was aware of the arguments against the proposal, as he would have been following the earlier consideration of the application. It would have been highly unlikely that seeing the arguments put forward again would have affected his judgement, therefore the outcome would likely have been the same.

The judge then referred to s31 of the Senior Courts Act 1981. With the overall decision highly unlikely to have been affected by any of the grounds of challenge, the application for judicial review was dismissed.

Comment

The reforms brought about by the Criminal Justice and Courts Act 2015 were met with hostility, and it was predicted that the 'no difference' principle would only be used by the courts in limited circumstances. R. (on the application of Logan) v Havering LBC [2015] EWHC 3193 (Admin) appeared to confirm this by interpreting the provision as 'only intended to apply to somewhat trivial procedural failings'. However in R. (on the application of Spitalfields Historic Trust Ltd) v Mayor of London it was notable that the court appeared to have the test in mind when considering the substance of each ground of challenge rather than taking a decision on the merits of each ground and then turning to the issue of relief separately. This may suggest a more expansive role for the new rule in the future.