Re-consultation for planning applications: how to do it

28 November 2017 by Charlotte Gilmartin

R (on the application of Holborn Studios Ltd) v Hackney LBC; R. (on the application of Del Brenner) v Hackney LBC [2017] EWHC 2823 (Admin) – John Howell QC sitting as a High Court Judge  read judgment

Update: Listen to the Law Pod UK podcast episode 19, available for free download from iTunes or from Audioboom here

The High Court has just ruled that the public should be reconsulted on a planning application which has been amended. Failure to do so may be procedurally unfair and therefore unlawful.

This important case will signal to public authorities the need to consider carefully their procedural obligations when determining the outcome of planning applications. They will now need to be alive to the risk that a court will substitute its own view of whether “fairness” requires that the public be re-consulted where a planning application has been amended.

Factual Background

In two judicial review applications the claimants challenged the process by which Hackney London Borough Council gave planning permission to a proposed development.

The development would have replaced a number of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney. It is a listed area of local architectural and historic interest and lies within the Regent’s Canal Conservation Area.

The initial planning application was submitted in 2015. It included a mixture of residential and commercial uses, and a special affordable housing proposal. The application was published on site notices, in a press advert, and letters were sent to 368 neighbouring properties. The application received 108 objections during the statutory consultation period, including from Holborn Studios and Mr Del Brenner.

Several amendments were subsequently made to the proposal in May 2016. These included a reduction in the number of residential units, and the deletion of all the affordable housing proposals.

Planning permission was granted on November 8^th 2016. The claimants sought judicial review of the allegedly unfair and unreasonable failure by the Council to re-consult about the amendments, given the substantial changes.

The Court’s Decision

The judge found as a matter of fact that the revised application had not been placed on the Council’s website, and there was also no press advertisement, no site notice, or any other consultation. There was no evidence that the Council had even turned their minds to whether the public should be re-consulted (§37-40).

As to the law, the courts have long recognised that amendments to planning applications may be made. However, this is subject to limits.

Firstly, the nature of the changes that may be made by way of an amendment are limited, depending on whether the change proposed is “substantial” or whether the development proposed “is not in substance that which was originally applied for”. The courts will only interfere with this assessment where it was ‘manifestly unreasonable’ (Wheatcroft v Secretary of State for the Environment (1982) 43 P&CR 233 at p24) (§68,72).

Secondly, as in this case, there is a separate question of the procedural constraints – i.e. when the local authority must re-consult following an amendment (§71, 75).

The judge’s key conclusion is that whether re-consultation is required “depends on what fairness requires” (§76). On the question of “fairness”, the judge held that  

…it is necessary to consider whether not doing so deprives those who were entitled to be consulted on the application of the opportunity to make any representations that, given the nature and extent of the changes proposed, they may have wanted to make on the application as amended.” [§79]

 Crucially, what fairness requires is for the court itself to determine – it is not limited to merely reviewing the reasonableness of a decision-maker’s judgment (§81). The test is best understood as “whether the process has been so unfair as to be unlawful” (relying on the judgment in Keep Wythenshawe Special supra per Dove J at §77 and §87).

Here, the local authority planning officers appeared to have assumed, because the changes proposed were, in their view, “positive” and would not cause “any significant adverse impact”, there was no need to re-consult.

At §91, the judge held that “that was not the right question nor an answer to it.” Instead, they needed to consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended.

The judge held that this was the case on the facts. Further, the parties’ representations might have made a difference to the decision, and so they had been substantially prejudiced. As a result, claims for judicial review succeeded, and the planning permission for the development of Eagle Wharf was quashed.

The duty to consult – a matter of public law fairness

Going forward, the test to be applied to the question of when a public authority will be required to re-consult the public on an amended planning application would firmly appear to be one of ‘public law’ fairness. Moreover, the court can substitute its own view as to what is fair, and will not be confined to a test of ‘manifest unreasonableness’.

The judge held that Forbes J in Wheatcroft Limited v Secretary of State for the Environment had incorrectly applied the same test of ‘manifestly unreasonable’ to both the substantive and procedural aspects of the power of a local planning authority to grant planning permission for an amended development. The judge thought that the two aspects are different, since a person can be deprived of an opportunity of consultation on a change which might not result in a “substantial difference”, but about which he or she “may want to make representations” (§73-74).

In determining the content of this procedural obligation, the judge relied on public law authorities setting out the common law requirements of consultation. Many of these had been cited to the court on behalf of Mr Del Brenner, in support of the contention that the Council had no unfettered discretion in considering whether or not to re-consult on a revised application. In particular, the judge was heavily influenced by the judgment of Dove J in Keep Wythenshawe Special Ltd v NHS Central Manchester [2016] EWHC 17.

This was a case that concerned the consultation requirements applicable to a decision to change acute hospital care. Dove J held at §74-75 that in determining whether re-consultation might be required, the question of whether the amendment resulted in “fundamental difference”

was in danger of having more rhetorical force than substantive content.

The court would determine the application of the concept of fairness, and its assessment “would be heavily influenced by the nature and extent of the differences.” Applying this test, Dove J accepted the arguments of the Defendants (represented by Philip Havers and Jeremy Hyam of 1 Crown Office Row) that they had complied with their obligations of consultation.

In the present case, it was submitted on behalf of the Claimants that, given the nature and extent of the changes to the Eagle Wharf development, the initial consultation did not relate to what the amended proposals were – the fairness of the initial consultation was effectively undone by the changes.

The judge however went further than this, and did not tie his conclusions to the scale or significance of the proposed changes. He noted that the changes were “not insignificant” (§91). But ultimately his conclusion that the failure to re-consult was unfair appears to rest on the fact that the public had been deprived of the opportunity to make any representations “that they may have wanted to make” on the application as amended (§90).

As such, whilst the case will help to ensure that communities are involved in the process of determining planning applications, the potential breadth of this decision could be a trap for the unwary public authority.

It is typically very difficult to challenge the exercise of judgment by a local authority as to the virtue of a planning development, unless discretion has been exercised in a manner which the court finds is ‘manifestly unreasonable’. In the future, however, local authorities will need to give careful consideration to the potential need to re-consult upon receipt of amendments to applications – even if they consider that the changes are “positive” and not something which will cause a significant adverse impact – and to what a court will think was “fair”. This will inevitably have profound implications for the time and resources of local authorities determining planning applications.

Charlotte Gilmartin is a pupil at 1 Crown Office Row. Jessica Elliott was instructed by Ian Graves of Shakespeare Martineau, both acting pro bono on behalf of the Environmental Law Foundation on the instruction of Emma Montlake. Hannah Noyce, also of 1 Crown Office Row, drafted grounds for review and assisted the Claimant at an earlier stage. Read more about the case here and here. 

Neither Jessica nor Hannah were involved in writing this post.