Judges dismiss legal challenge over grant of permission for new Chinese embassy

The Royal Mint Court Residents’ Association brought claims for statutory review pursuant to section 288 of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The case was heard by Lord Justice Dingemans, Senior President of Tribunals, and Mrs Justice Lieven at a rolled up hearing earlier this month.

Lieven J gave the judgment, with which Dingemans LJ agreed in a short concurring judgment.

The court found that the Secretary of State had not acted unlawfully.

The residents’ association had advanced four grounds of challenge. Permission was granted on three out of four of the grounds, but the claim was ultimately dismissed.

Ground one, which the court held was arguable, alleged an unlawful approach to the enforcement of planning conditions and obligations.

Lieven J said it was apparent from paragraphs 103 to 105 and 110 of the Secretary of State’s decision letter that the Secretary of State was well aware of the status of the PRC as an applicant, had well in mind the limitations of remedies under the Vienna Convention on Diplomatic Relations 1961 (the Vienna Convention), and it was not irrational to conclude that the PRC would comply with planning conditions and obligations.

Ground two, which the court also held was arguable, alleged an unlawful failure to disclose documents to the claimants during the inquiry, namely, the Security Statement and Blast Assessment which had been referred to by the London Borough of Tower Hamlets.

Lieven J said there was no material prejudice caused to the residents' association. The Security Statement contained no substantive information which was not in the public domain, and that the relevant information from the Blast Assessment was contained in the Officers’ Reports, so no issue of procedural unfairness could arise. Further the Counter Terrorism Security Adviser had not objected to the grant of planning permission.

The Divisional Court found ground three not arguable. It alleged non-compliance with Article 7 of the Town and Country Planning (Development Management Procedure) England Order 2015 because some rooms on the plans were not described.

“The question under article 7 DMPO as to whether information is ‘necessary’ to describe the development is plainly one for the decision-maker and not the court,” Lieven J said.

The rooms where details were redacted were being used for the purposes of the embassy, and "there was no possible ambiguity as to the nature of the intended use of the premises".

Lieven J added: “There was nothing irrational in the SSHCLG’s decision that no further information was required. It is wholly conventional for the use of individual rooms in a development not to be described. Unless expressly conditioned it is open to the developer/occupier to change the use of the rooms within the development. There is nothing on the face of an embassy use which would justify conditioning the use of individual rooms in the way suggested by the Claimant."

The fourth ground (originally the fifth ground of challenge and referred to as ground five in the judgment) was held to be arguable, but was dismissed.

This alleged an unlawful failure to identify and assess human rights of the residents.

The residents’ association did not produce reasonable and convincing evidence of the likelihood that a violation of human rights affecting them personally would occur, the judge said.

Lieven J said it was also apparent that all of the rights of residents protected by the Convention were properly addressed throughout the process of the application for planning permission.

The claimant did raise issues relating to protests and their safety in the event of the grant of planning permissions, and these issues were fully and fairly considered by the Secretary of State in making the lawful decision to grant planning permission.

[This article is based on the Divisional Court’s press summary]