This was the second time planning permission had been granted for this fully affordable scheme. The first grant of planning permission was quashed by Lang J in R (Kinsey) v London Borough of Lewisham  EWHC 1286 (Admin). The matter was remitted for reconsideration and planning permission was granted again on 29 June 2021.
The same Claimant sought to challenge the second grant of planning permission. Permission for judicial review was originally sought on three grounds with an application to add a fourth ground made just over a week before the hearing. The four grounds of challenge were:
The Council misunderstood policy, had no evidence and acted unreasonably in asserting that the scheme was the ‘optimum viable use’, or more accurately, that a smaller scheme was not viable.
- The Council acted unreasonably, in breach of the Statement of Community Involvement and in breach of the obligations with respect to background papers in publishing a large volume of material shortly before the committee meeting and proceeding with the meeting.
- The Council failed to publish third party consultation responses at all in breach of the requirement on background papers.
- The Council have failed to have regard to material considerations, namely the critical representations made by the London Wildlife Trust, as ecological experts and managers of the adjacent Sydenham Hill Woods Local Nature Reserve, dated 16th March 2020.
- Fordham J refused permission to add ground 4, refused permission for judicial review on grounds 2(i) (“Section 100D of the Local Government Act 1972”), 2(ii) (“Statement of Community Involvement”) and 3, and allowed permission for grounds 1 and 2(iii) (“Procedural Fairness”) but dismissed the claim.
On ground 1, Fordham J held that despite the appearance of “stray wording” in the conclusion section of the officer’s report, when read fairly and as a whole the substance of the report was not misleading. Useful exposition on the full meaning of “optimum viable use” is provided at paragraph 20 of the judgment.
On ground 2, Fordham J found that whilst the publication requirements of s. 100D of the Local Government Act 1972 do not “occupy the field” such that common law requirements of procedural fairness still apply, in this case there was no common law unfairness caused to the Claimant or any other party.
On ground 3, Fordham J re-iterated the importance of officer assessment in determining what documents are “background papers”. Any challenge to such a determination can only succeed where a conclusion that a document is or is not a background paper is held to be unreasonable.
On ground 4, Fordham J agreed with the Defendant that despite the local planning authority not having been aware of this specific representation, the officer’s report had carefully and conscientiously addressed all the matters raised in the London Wildlife Trust’s representation and sight of the representation would have made no difference to the outcome of the planning application.