Factual and Procedural Background
These claims for judicial review challenge the grant of planning permission by the Council of the London Borough of Hackney for the redevelopment of Eagle Wharf, a site of local architectural and historic interest within a conservation area and a Priority Employment Area. The redevelopment proposal involved partial demolition and a mixed-use scheme including residential, commercial, and café floorspace, with amendments made to the original 2015 application, notably in May 2016.
The first claim is brought by Holborn Studios, a major photographic and film studio leaseholder at Eagle Wharf, asserting unfairness in the failure to notify or consult them and the public on amendments, non-disclosure of critical letters, and a mistake of fact by the Planning Sub-Committee. The second claim is brought by the Secretary of the Regents Network, a community body protecting waterways, raising similar complaints about lack of notification and alleging failure to consider certain development plan policies.
The Council granted planning permission on 8 November 2016, following a Planning Sub-Committee meeting on 6 July 2016. Permission to bring these judicial review claims was granted by Lang J.
Legal Issues Presented
- Under what circumstances may an application for planning permission be amended without notification of the amendment to others?
- What test or tests should the court apply when reviewing the legality of such an amendment?
- Whether the Council lawfully failed to re-consult Holborn Studios and the public on the May 2016 amendments to the 2015 planning application.
- Whether Holborn Studios should have been able to inspect two letters said to be from photographic/film studios in un-redacted form.
- Whether the Planning Sub-Committee failed to take into account relevant policies relating to the Blue Ribbon Network and heritage assets.
- Whether the Claimants suffered any material prejudice as a result of these alleged procedural failings.
Arguments of the Parties
Appellant's Arguments (Holborn Studios)
- The Council unfairly failed to notify or consult Holborn Studios and the public on substantial amendments made in May 2016 to the planning application.
- Holborn Studios should have been consulted given its expertise and the claim that the amended plans were designed to meet its needs.
- The failure to notify prejudiced Holborn Studios’ ability to respond, including obtaining a structural engineer’s report demonstrating that the proposed basement studios were unsuitable.
- The Council unfairly refused to adjourn the Planning Sub-Committee meeting to allow Holborn Studios more time to respond.
- The two letters relied upon to support the suitability of the basement studios were improperly withheld in redacted form, preventing Holborn Studios from challenging their credibility or expertise.
- The Planning Sub-Committee acted under a mistake of fact regarding the nature and expertise of the letter writers.
Appellant's Arguments (Secretary of the Regents Network)
- The Council failed to notify or consult the public on the May 2016 amendments.
- The Planning Sub-Committee failed to take into account relevant policies in the development plan relating to the Blue Ribbon Network and heritage assets.
Respondent's Arguments (Council)
- No statutory or common law duty required re-consultation on the May 2016 amendments as the changes were not fundamental or substantial.
- The decision whether to re-consult is a matter of planning judgment for the local planning authority, subject only to review for irrationality or unreasonableness.
- Those who made representations in 2015 had notice of the Planning Sub-Committee meeting and access to the report and amended application on the Council’s website, providing a fair opportunity to make further representations.
- The redacted letters were not submitted as part of the application and contained personal information; there was no obligation to disclose un-redacted versions.
- Holborn Studios was not prejudiced by the redaction as it was able to make representations on the contents of the letters at the Planning Sub-Committee meeting.
- The Council had no obligation to notify Holborn Studios specifically of the amendments, and the Planning Sub-Committee properly exercised discretion in refusing to adjourn the meeting.
- The Planning Sub-Committee properly considered relevant policies relating to the Blue Ribbon Network and heritage assets, and any omission was immaterial.
Respondent's Arguments (Interested Party)
- Supported the Council’s position that no re-consultation was required and that the amendments did not constitute a fundamental change to the application.
- Asserted that the basement floorspace was suitable for a range of commercial uses including photographic studios.
- Maintained that Holborn Studios was not prejudiced and had the opportunity to make written and oral representations on the amended scheme.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 |
Authorities must follow published policies unless there are good reasons not to; legitimate expectation may arise from clear and unambiguous assurances. |
Applied to assess the Council’s Statement of Community Involvement and whether it generated legitimate expectations regarding consultation. |
| R (Majed) v Camden LBC [2009] EWCA Civ 1029 |
Legitimate expectation arises from clear, unambiguous promises without relevant qualification. |
Used to support claim that Holborn Studios had a legitimate expectation to inspect associated documents. |
| R (Gerber) v Wiltshire Council [2016] EWCA Civ 84 |
Legitimate expectation principles applied to statements of community involvement. |
Supported the analysis of the Council’s consultation policy and expectations. |
| Bernard Wheatcroft Limited v Secretary of State for the Environment (1982) 43 P&CR 233 |
Substantive limitation on amendments to planning applications; permission cannot be granted for development in substance different from that applied for; local authority’s planning judgment subject to Wednesbury review. |
Key authority for assessing whether amendments required re-consultation and whether the Council’s decision was reasonable. |
| R (Wet Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin) |
Test for re-consultation depends on fairness and the extent of changes; local planning authority’s discretion subject to review. |
Relied upon by both sides regarding the requirement and scope for re-consultation. |
| R (Moseley) v Haringey Borough Council [2014] UKHL 56 |
Common law duty of procedural fairness informs consultation requirements; fairness depends on nature and extent of changes. |
Applied to determine whether re-consultation was required in this case. |
| Keep Wythenshawe Special Ltd v NHS Central Manchester [2016] EWHC 17 |
Fairness requires clear communication of proposals to those with potential interest; re-consultation depends on nature and extent of changes. |
Used to assess the adequacy of consultation following amendments. |
| R v North and East Devon Authority ex p Coughlan [2001] QB 213 |
Consultation must inform interested parties clearly about proposals. |
Supported the view that amended applications must be clearly communicated to consultees. |
| Kent County Council v Secretary of State for the Environment (1977) 33 P&CR 70 |
Authority may grant permission for part of the development applied for if divisible. |
Referenced in discussion of partial grants of planning permission. |
| R (Coronation Power Limited) v Secretary of State for Communities and Local Government [2011] EWHC 2216 (Admin) |
Whether changes are fundamental is a matter for the local planning authority; consultation requirements must be balanced with planning judgment. |
Supported the Council’s discretion in deciding whether re-consultation was necessary. |
| Wilson v Secretary of State for the Environment [1973] 1 WLR 1083 |
Prejudice may arise from failure to give appropriate notice which could attract other objectors. |
Supported the Claimants’ argument on prejudice caused by lack of consultation. |
| Walton v Scottish Ministers [2012] UKSC 44 |
Similar principle as Wilson regarding prejudice from lack of notice. |
Applied to assess prejudice to the Claimants. |
| R v Secretary of State for the Environment, Ex parte Brent London Borough Council [1982] QB 593 |
Caution against speculation on how decision-maker would have acted if representations had been heard. |
Emphasized the importance of procedural fairness and the risk of prejudging outcomes. |
| Westminster City Council v Great Portland Estates [1985] AC 661 |
Planning control should consider difficulties of businesses valuable to community character. |
Supported the importance of retaining Holborn Studios in the redevelopment assessment. |
| R (Perry) v Hackney LBC [2014] EWHC 3499 (Admin) |
Disclosure of documents submitted in confidence may be refused; members entitled to rely on officer advice. |
Distinguished by the court as not applicable to the letters in this case which were not submitted in confidence. |
Court's Reasoning and Analysis
The Court examined both substantive and procedural limitations on amendments to planning applications. Substantively, amendments must not result in permission for development in substance different from that applied for. Procedurally, statutory requirements mandate notification and publicity to enable representations by affected parties; these rights cannot be circumvented by amendments without re-consultation where fairness requires it.
The Court rejected the conflation of substantive and procedural constraints and held that the test for re-consultation is what fairness requires, considering the nature and extent of changes and their potential significance for consultees.
The May 2016 amendments involved substantial changes: increased commercial floorspace by 34%, reduced residential units by 22%, and removed all affordable housing previously proposed. These changes were material and not minor variations.
The Council failed to notify or consult Holborn Studios or the public on these amendments, and no contemporaneous reasoning or witness evidence justified this omission.
The Court found that the failure to re-consult deprived those entitled to be consulted of the opportunity to make representations on the amended application, which was unfair and unlawful. The letter sent on 28 June 2016 was insufficient as it did not disclose the amendments clearly and discouraged new representations.
Holborn Studios had a particular interest in the suitability of the basement studios, which was a significant planning consideration. The failure to notify Holborn Studios of the amendments deprived it of the opportunity to make representations, including commissioning a structural report indicating that the proposed basement studios were not fit for purpose.
The Court held that Holborn Studios should have been notified as a matter of fairness, notwithstanding the absence of statutory requirement to notify it specifically of amendments.
Regarding the two letters said to be from photographic/film studios, the Court held these were associated documents submitted to support the application and thus should have been made publicly available un-redacted in accordance with the Council’s Statement of Community Involvement. The letters were not submitted in confidence and the redactions deprived Holborn Studios of the opportunity to challenge the credibility and expertise of their authors.
The Court found that the authors of the letters lacked relevant expertise and that the Report’s assertion that they came from two photographic/film studios was mistaken, amounting to a material error of fact.
On the alleged failure to consider certain Blue Ribbon Network and heritage policies, the Court found that although some policies were not specifically cited, the substance of the matters they addressed was considered in the Report; any omission was immaterial.
The Court addressed the issue of prejudice and found that the Claimants were materially prejudiced by the procedural failings, particularly Holborn Studios whose representations might have influenced the Planning Sub-Committee’s decision.
The Court rejected the Respondents’ submission that the outcome would have been the same absent the failings, emphasizing the importance of procedural fairness and the risk of prejudging outcomes without hearing representations.
Holding and Implications
The claims for judicial review succeed. The planning permission granted by the Council on 8 November 2016 for the redevelopment of Eagle Wharf is quashed.
The Court’s decision emphasizes that substantial amendments to planning applications require fair consultation and notification to affected parties, including those with particular interests such as leaseholders. It reinforces that procedural fairness is a distinct and critical safeguard alongside substantive planning judgment.
While the decision directly affects the parties by invalidating the planning permission, the Court did not establish any new legal precedent beyond clarifying the application of existing principles to the circumstances of amendments and consultation in planning law.