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R.(On the Application of Garner) v Elbridge BC [2011] EWHC 86 (Admin)

Gregory Jones QC

The High Court refused to quash the decision to grant planning permission for a controversial redevelopment of a site opposite Hampton Court Palace.  Gregory Jones appeared on behalf of Network Rail, who were an interested party in the case as the proposed development incorporated significant improvement works to the listed Hampton Court Station.

The claimant was a former employee of the charity responsible for the upkeep of the Palace.  He challenged the Council's decision to permit the development on the grounds that it had failed to "have special regard" to preserving the setting of Hampton Court Palace as required by section 66(1) of the Planning (Listed Building and Conservation Area) Act 1990, had failed to apply the sequential tests for development in a flood plain, set out in Planning Policy Statement 25 "Development and Flood Risk", and failed to give sufficient reasons for granting permission.

Ouseley J decided that the evidence showed that the Council had treated the setting of the Palace as "one of the key issues" (at [67]).  He decided that the claimant's argument that the Sequential Test had to be applied to the site was "not arguable" (at [102]) because the "Sequential Test is not sensibly applicable to a mixed use development which has to be on a particular site to achieve its regeneration" (at [89]).  Finally, he held that the reasons for granting permission were adequate and in any event could be readily supplemented by the planning officer's report to the Members (at [100]).  Although the statutory duty to set out the applicable policies had not been complied with, the court exercised its discretion not to set aside the decision, as this was a "small omission" and it would be a "waste of time" requiring compliance (at [101]).