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High Court Makes Order for Full Disclosure and Cross-Examination in Kensington Forum Hotel Judicial Review

Charles Streeten

Following a contested hearing, the High Court has granted an application by the Royal Borough of Kensington and Chelsea for:

(a) Permission to cross-examine the Chief Planner and a Planning Team Leader at the Greater London Authority; and

(b) 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 for planning permission for the redevelopment of the Kensington Forum Hotel (reference PP/18/03461).

In August of this year RBKC brought a claim for judicial review of the Mayor’s decision to grant planning permission for a part 30, part 22, part 9 storey building on land at the Kensington Forum Hotel, 97-109 Cromwell Road, London, SW7 4DN. The Claim was brought, inter alia, on the basis that the decision was motivated by an improper purpose. The claim itself also followed a previous successful challenge to the Mayor’s decision to call-in the decision last year.

On 24 September 2019, Lieven J. granted permission for judicial review on the grounds of improper purpose, stating that the claim was “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. Moreover, RBKC argued that, notwithstanding repeated requests, the Mayor’s approach to the duty of candour and disclosure had fallen short of the standard to be expected of a public authority.

RBKC therefore applied for permission to cross-examine relevant officers at the GLA and for disclosure.

Following a contested hearing at which both the GLA and the developer were represented by leading counsel, Lang J. allowed RBKC’s applications for disclosure and cross-examination. In an ex tempore judgment handed down on 21 November 2019, she accepted RBKC’s submission that disclosure by the GLA to date appeared incomplete, and agreed that there were issues of fact requiring resolution in oral evidence. She made orders accordingly.

Such orders are exceptional in claims for judicial review, and the decision illustrates the importance for public authorities of ensuring they make full and frank disclosure. It also highlights the court’s readiness to grant orders for disclosure and cross-examination in appropriate cases. Whilst such orders will be rare, practitioners should be alive to the need to make suitable applications where necessary.

Charles Streeten appeared for the successful applicant, the Royal Borough of Kensington and Chelsea, in these proceedings and in the previous successful claim for judicial review, instructed by Lorna Bowry of Bi-Borough Legal Services.

A copy of the court’s order is available here.