Consultation: the risks of late changes

Permission was sought for the partial demolition of most of the existing buildings with the retention of part, to create a mixed-use scheme with residential, retail and commercial space. The application was advertised by site notice and press notice. The utility of a new basement space as a photographic studio became a source of controversy.

The primary tenant, Holborn Studios Limited, ran the photographic studios and made representations about the development during the statutory consultation. The developer made amendments to the planning application in May 2016, including a change to the amount of commercial floorspace, the number and types of dwellings and the plans describing the development. The amendments included a new application form, 16 new plans and a Design & Access Statement that stated that one “of the key principles for the proposed development” was the provision for Holborn Studios to be accommodated “at the heart of the development”, and claimed the proposal had been developed in consultation with them.

The new revised application contained an erroneous certificate stating that Holborn Studios had been notified of the application. There was no site notice, press notice or any consultation about the changes. In July 2016, the Council’s Planning Sub-Committee resolved to grant planning permission, and, following completion of a planning obligation, planning permission was granted on 8 November 2016.

Holborn Studios’ claim for judicial review complained it was severely prejudiced, because among other things, it and the public more generally were not notified or consulted on the amendments. It argued that the Council had unfairly failed to adjourn the planning committee’s consideration of the amended application to allow it time to respond, and that the Council unfairly failed to disclose un-redacted letters that officers had relied upon to assess the usefulness of the basement space.

John Howell, QC, sitting as a Deputy High Court Judge, held that further consultation about the amendments ought to have been carried out, and quashed the planning permission.

The Court found the interests of third parties could not be sidestepped and those interests had to be protected when an amendment was being proposed. Such considerations also applied in cases where permission was granted for only part of a development for which an applicant sought planning permission, or in cases where the permission might be granted subject to the attachment of a condition that might alter the development as proposed in the application.

On the question of whether unfairness would result from a failure to re-consult, the decision maker should consider if that failure would deprive those entitled to be consulted with the chance to make representations that they might have wished to make on the application, given the nature and extent of the changes.

The test for re-consultation on an amendment was not whether it involved a fundamental change and involved a substantial difference to the application or if the amendment would result in a substantially different application. The correct approach was to ask what fairness required in the circumstances, which was a matter ultimately for the Court itself to determine.

The Council’s Statement of Community Involvement provided for the two letters it enclosed to be made available for public inspection on the website. The Court held that the failure to enable Holborn Studios to inspect the two letters from the date they were submitted to the Council and in an un-redacted form, substantially prejudiced Holborn Studios.

This is a first instance judgement of the Planning Court and is likely to prompt local planning authorities to ensure their re-consultations cast as wide a net as possible and encourage them to adopt a cautious approach to planning application amendments. In the course of his judgment, the Deputy Judge remarked, “It is not for this Court generally speaking to anticipate what the outcome would be if a planning authority had had regard to representations which they have not considered”.

It seems that only in the most exceptional cases will the Court accept a submission that where a failure to effectively re-consult has been established, that failure has not prejudiced an aggrieved party.

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