In the course of a characteristically robust judgment in the High Court 1, Gilbart J has rejected a challenge by the Spitalfields Historic Trust to a decision of the former Mayor of London to call in for his determination a planning application for an office-led redevelopment of the historic Norton Folgate area in Spitalfields. The application had been made to Tower Hamlets whose planning committee, in the face of an officer recommendation to approve, indicated that they were minded to refuse the proposals. This prompted the Mayor to use his powers to intervene under the Town and Country Planning (Mayor of London) Order 2008. In September 2015 he directed that he was to be the local planning authority for the purposes of the planning application and the associated listed building consent. He subsequently resolved to grant both permissions.

The decision to call in was challenged on four separate grounds. However, perhaps the most interesting observations made by Gilbart J were reserved for the fourth ground of challenge. This alleged that the officer's report leading to the call-in decision was not an objective assessment and its author had made up his mind on the outcome before considering the referral from Tower Hamlets. An e-mail sent by the officer to the applicant had indicated that he would recommend that the Mayor should determine the application. This indication had been given in advance of a consideration of relevant documentation – including representations on the scheme. According to the challenger this was not consistent with the duty on the officer to address the applications neutrally and without prejudgement according to the principles set out by Sedley J in  R (Wm Morrison Supermarkets Ltd) v Teesside Development Corporation [1998] JPL 23. 

In response, Gilbart J acknowledged that it had been ‘unwise’ of the officer to send the email to the applicant. However, he was satisfied that the comprehensive report that had been subsequently prepared had dealt very fairly with all the objections to the development. Referring to the ‘real world of planning control’, Gilbart J made the point that prospective developers are encouraged to talk to planning authority officers both in advance of  applications being submitted and also after they have been made. He characterised the Teesside Development Corporation decision as an ‘extreme example’, where the then planning authority was also responsible for actively promoting development. Harking back to his time as a leading  planning silk, Gilbart J made the point that in the late 1990s when Development Corporations were active, tensions between roles as promoter and decision maker were far from uncommon. However he distinguished the factual situation he was faced with from that which confronted Sedley J which involved a planning authority and officers who had clearly departed from a disinterested approach. Gilbart J also pointed to the comprehensive nature of the officer report which did not suggest a partisan attitude. Gilbart J was therefore content that this ground of challenge should fail.

Whilst the challenge was ultimately unsuccessful, the outcome does highlight an area of potential risk to planning decision makers.  With the prospect of Combined Authorities and Metro Mayors becoming increasingly involved in the active promotion of schemes whilst retaining a role in planning decisions associated with them, there is an enhanced risk that accusations of ‘institutional bias’ will be levelled at them. Given this context, the need to be able to demonstrate ‘clear blue water’ between decision making streams is essentials.