On 21 June 2019, the Mayor of London granted planning permission for a significant and controversial development, on land at the Kensington Forum Hotel, 97-109 Cromwell Road, London, SW7 4DN. The scheme, designed by Simpson Haugh, included a 30 storey tower, which would have been the tallest in Kensington, and provided a 749 bed hotel and 402 residential units in South Kensington. However, following a judicial review brought by the Royal Borough of Kensington and Chelsea, the High Court has quashed the planning permission, after the Mayor of London conceded that the decision to grant the permission was motivated by an improper purpose; namely frustrating the Secretary of State for Housing Communities and Local Government.

RBKC had resolved to refuse planning permission in September 2018, but the Mayor issued an Article 5 direction, allowing him to determine the application himself. In prior proceedings, RBKC challenged this initial direction, on the grounds that the Mayor had misrepresented RBKC’s performance in housing delivery. The challenge was resisted by both the Developer and the Mayor, who filed written evidence the veracity of which RBKC challenged. Following a request by RBKC to cross-examine the Mayor’s witnesses, and the grant of permission by Wynn Williams J, the Mayor consented to judgment and the Mayor’s direction was quashed. Unusually, the High Court’s order on this occasion expressly excluded any officer involved with making the original direction from being involved in any future call-in decision.

Following a further Article 5 direction, which RBKC did not challenge, the Mayor resolved to grant planning permission on 21 June 2019, and issued the decision notice the same day.

RBKC challenged this grant of permission, inter alia, on the basis that the decision was motivated by an improper purpose, namely to prevent the Secretary of State from exercising his statutory power to call the application in for his own determination. In particular, RBKC pointed out that, notwithstanding advanced negotiations between RBKC, the Mayor and the developer on the terms of planning obligations under section 106 Town and Country Planning Act, the Mayor of London and the developer had executed a unilateral undertaking secretly and at pace so that RBKC were not a party to the obligation. This move allowed the planning permission to be issued as soon as the Mayor had resolved to grant permission, although the Secretary of State had indicated that he was considering calling-in the application, and officers at MHCLG had understood that the Greater London Authority had agreed not to issue a decision notice until the Secretary of State had made a decision on this.

Permission for judicial review was granted by Lieven J on 24 September 2019. In doing so, she described the ground alleging that the decision was taken for an improper purpose as “plainly arguable”.

Following service of further evidence and detailed grounds on behalf of the Mayor, it became apparent that there were factual disputes regarding the background to the decision to grant planning permission, including the nature of any agreement between MHCLG and the GLA, the circumstances in which the unilateral undertaking was executed, and the motivation behind the decision to issue the decision notice. RBKC therefore wrote to the Mayor, on numerous occasions, reminding the Mayor of the duty of candour and requesting various relevant documents. The Mayor refused to comply with these requests and, in light of the Mayor’s stance, RBKC made applications to the court to cross-examine the then Chief Planner and a planning team leader at the GLA, as well as for disclosure of relevant documents.

The application was determined at a contested hearing, with both the Mayor and the developer represented by leading counsel. RBKC argued that the factual evidence given by officers at the GLA was not credible, and that the Mayor’s approach to the duty of candour and disclosure had fallen short of the standard to be expected of a public authority. Lang J accepted RBKC’s submission that the GLA’s disclosure appeared incomplete, and that cross-examination was necessary to resolve relevant factual issues. As such, in a highly unusual step in judicial review proceedings, she granted RBKC permission to cross-examine the Chief Planner and a Planning Team Leader at the Greater London Authority, and ordered the GLA to make full disclosure of “all documents that have come into existence between 1 December 2018 and 5 July 2019 in respect of or in connection to the consideration and determination of the application” (see more here).

An extensive disclosure exercise followed involving the inspection of a very substantial number of documents.

Following that disclosure exercise, the Mayor of London conceded RBKC’s claim. Despite previous denials, including in sworn witness statements and in detailed grounds, the Mayor accepted that, in the light of the evidence, the decision to grant planning permission had been motivated by an improper purpose and having regard to irrelevant considerations; namely the desire to prevent the Secretary of State from calling in the decision.

On 13 March 2019, the High Court approved the consent order, quashing the permission and awarding RBKC £90,000 in costs. A copy of that order is available here.

This lengthy sequence of litigation and the defendant’s ultimate concession demonstrate the importance of tenacity and procedural ingenuity in judicial review litigation. The case is a salutary warning of the risks attendant upon the poor discharge of the duty of candour by public bodies, not least in the form of very adverse costs consequences. Finally, it shows the court’s willingness to use the tools at its disposal to facilitate clearly meritorious claims where the claimant faces an evidential disadvantage.

Charles Streeten, assisted by Michael Brett, acted for RBKC in both sets of proceedings, instructed by Lorna Bowry of Bi-Borough Legal Services.