779: High Court lowers re-consultation duty
Today’s entry reports on a successful judicial review of a lack of re-consultation when changes were made to a planning application that will have Planning Act 2008 implications.
Earlier this month the High Court gave judgment in the ‘Holborn Studios’ case about a planning application granted by Hackney Borough Council for a redevelopment overlooking the Regent’s Canal. The judge said that part of the judgment in the 1982 Wheatcroft case was flawed. Since that case is referred to in Planning Inspectorate advice on making changes before the end of the examination stage of a Development Consent Order application, this new judgment will be relevant to those considering making such changes.
The full judgment can be found here, but here is a summary. My head hurts a little having read it but I think the gist is as follows.
The applicant was the owner of a canal-side development which they wanted to redevelop, including an operational photographic studio within it. After making an initial application, various changes were made to it, but they did not notify anyone about them, in particular the leaseholder and operator of the photographic studio and a person interested in canal-side development, although those two (the eventual claimants) did get wind of the changes shortly before they were debated and decided.
The changes to the application may have fallen short of ‘substantial’ or ‘fundamental’ changes to the project, but nevertheless at least the claimants would have had something to say about them had they had a proper opportunity to do so, which might have influenced the decision on the amended application.
The judge in the new case seeks to separate the level of significance at which changes should be allowed to be made at all (which he calls the ‘substantive constraint’) and the level at which consultation should be carried out on them (which he calls one of the ‘procedural constraints’). The Wheatcroft case considers them to be the same and indeed that the latter sets the bar for the former, but in this case it was decided that the latter could be a lower threshold than the former.
It was also considered whether the decision would have been the same if reconsultation had been carried out, and also whether the same result would have been ‘highly likely’, a new test for refusing judicial review claims. In both cases the possibility of the decision being different was sufficient to overcome both those hurdles.
In a rather topical extra point, the applicant submitted two letters in support of the application that were not originally published. When they were eventually released to scrutiny they were heavily redacted, even though the council’s own statement of community involvement said that all material supporting applications would be published. This was also found to be inadequate. Brexit impact assessments, anyone?
So, what does this mean for changes made to DCO applications? Two things, I think.
First, it emphasises the need to err on the side of caution on the principle and extent of reconsultation on proposed changes to a project after the application has been made. If anyone could have something to say about the changed application, even if the applicant thinks it is better all round, it would be safer to consult such people. That’s not to say that the whole world should be consulted for every minor change, but the applicant should at least be able to show that they’ve thought about who to consult – which means building in 28 days to the timetable for that.
Secondly, it makes the test for a material change (ie the trigger for further consultation) potentially different to the Wheatcroft test of ‘would anyone be prejudiced by the changes if they hadn’t been consulted’. That may not make much difference to developers in practice, but it will probably require a change to Advice Note sixteen.
Since the upper and lower boundaries of a permissible material change are whether additional consultation should be carried out and whether the changes make it effectively a different project, that is the same as before, it just shouldn’t be called the Wheatcroft test.
The ‘Bob Neill’ letter about pre-examination and examination changes may need changing too – perhaps via an ‘Alok Sharma letter’ that updates it given that it just had its sixth birthday.