Challenge to permission for mega-basement rejected
A High Court judge recently dismissed a judicial review challenge over the grant of planning permission for a ‘mega-basement’ in London. Charles Streeten explains why.
The High Court has handed down judgment dismissing a judicial review of the Royal Borough of Kensington and Chelsea’s decision to grant planning permission and listed buildings consent for the construction of a “monumental” basement beneath a detached five storey house on London’s Holland Park.
The basement will house a swimming pool together with a lobby, ‘pool lounge’, changing area, gym and wine store, across a total area of 271 square meters and was said by the members of the RBKC Planning Committee to be one of the largest such developments the Committee had ever considered.
Following an oral hearing, on 22 May 20204, Lang J granted permission for judicial review on the grounds that:
(1) In assessing the construction impact of the development RBKC had:
a. Failed properly to interpret or apply the Planning Practice Guidance on noise; and/or
b. Unlawfully failed to reconsult its Environmental Health Officer on the objections submitted by consultants with technical expertise instructed by neighbouring occupiers.
(2) The decision to grant planning permission was a breach of the Claimant’s rights under Article 8 of the European Convention on Human Rights.
(3) RBKC had misconstrued Policy CL7 of the Local Plan by regarding it as a “permissive policy”.
Dismissing the Claim on all grounds, HHJ Jarman KC held in R (Davies) v RBKC [2024] EWHC 2711 (Admin) that:
(1) Whilst the PPG had not been referred to in the officer’s report, such an omission does not necessarily lead to the conclusion that it was not properly understood or considered. Members were entitled to take into account the other statutory environmental controls that exist, and to assume that such controls will operate effectively. On a fair reading of the officer’s report as a whole, it was apparent that officers had concluded the application was consistent with national policy on noise, including the PPG. The Claimant’s challenge on this issue was, in truth, a challenge to the judgments reached by the elected members of RBKC’s planning committee.
(2) There was no statutory duty to consult (or reconsult) the Council’s EHO and the test for an unlawful consultation at common law had not been satisfied. Again, the reality of the Claimant’s claim was that it was a disagreement with the judgment of the officer regarding the need to reconsult the EHO.
(3) In reaching the conclusion that the noise impacts from the construction of the proposed development would be acceptable, RBKC had carried out the exercise required by Article 8 of considering whether any interference with neighbouring amenity was necessary.
(4) There was no error in the approach to CL7. ‘Permissive’ is precisely that, and unless the requirements set out in the policy are met by the proposal, then it will not comply with that policy. If the requirements are met then the proposal complies with that policy but regard must still be had to other policies and material considerations.
A copy of the judgment is available here.
Charles Streeten is a barrister at Francis Taylor Building. He acted for the successful defendant, the Royal Borough of Kensington and Chelsea, instructed by Donna Lee of Bi-Borough Legal Services.
