Thomas's Kensington wishes to consolidate its premises on two sites in St Albans Grove, including a former school building on a larger site known as Atlantic House.

Local residents objected to the proposals on grounds of noise generated by children in the playground and potential for increased traffic congestion on local roads.

The Claimants sought judicial review on three grounds.  Permission to apply for judicial review was granted only on the first ground and a "rolled up" hearing was ordered for the determination of that issue and the renewed application for permission on grounds 2 and 3.

The Claimants’ first ground was that the Council misinterpreted national noise policy in paragraphs 174 and 185 of the National Planning Policy Framework, and local noise policy in Local Plan Policies CE6 and CL5, and erroneously concluded that development giving rise to a "significant observed adverse effect level" would not conflict with those policies.  They contended that on a proper interpretation the Noise Policy Statement for England, the Framework and National Planning Practice Guidance did not permit new development that would cause such noise levels.

But the court accepted the Council's case that the noise policies were accurately summarised by the planning officer and there was nothing on the face of her report to members to suggest that she had misinterpreted their terms.  The court accepted that the policies contained broad statements as to whether noise levels were "unacceptable" and whether the development was "appropriate for its location" required the exercise of evaluative judgement by the decision-maker which could only be challenged on the ground that it was "irrational" or "perverse" and the Council's decision could not be faulted on those grounds.

The second ground of challenge was that the Council acted irrationally by failing to secure noise mitigation by way of acoustic glazing to a neighbouring property that it had considered necessary to make the development acceptable and that the Council had acted irrationally in placing reliance upon an irrelevant consideration, namely that a planning condition or planning obligation under section 106 could not require works to be carried out to a neighbour’s property.

But the court noted that by the time of the Council's planning committee meeting, site meetings and discussions had taken place regarding mitigation for the affected property and the school had offered to install the acoustic glazing.  In those circumstances, the Council took the view that “it could reasonably be expected that the school would carry out their offer” and so that could not possibly be characterised as an irrational exercise of judgement by the Council, even if other options were available. 

Under the Claimants' third ground, they submitted that the Council had acted irrationally by granting planning permission without securing a "school street", which would restrict vehicle access during school opening and closing times.

But the court again accepted the Council's case that the Claimants' allegation was another thinly veiled challenge to the merits of a planning judgement reached by the Council which involved no arguable legal error.

So the High Court (Lang J) dismissed the claim under Ground 1 and refused permission to apply for judicial review under Grounds 2 and 3 and awarded payment of the Council's costs, see R (Cook and Pickett) v. Royal Borough of Kensington and Chelsea & Thomas's London Day Schools [2024] EWHC 42 (Admin).  A copy of the court's judgment can be found here.

The redevelopment of the school will now proceed as planned.

Meyric Lewis KC appeared for the Royal Borough of Kensington and Chelsea instructed by Lorna Bowry of Bi-borough Legal Services. Charles Streeten drafted the Council's pleadings.