An underground car lift in Kensington: To what extent are LPAs obliged to engage with expert evidence submitted by objectors?

22 Sep 2020

Planning and Environment

The Court has dismissed a challenge to the grant of permission by the Royal Borough of Kensington and Chelsea for an underground parking facility, car lift and turntable on a private driveway opposite the Natural History Museum in central London: R(Thurloe Lodge Limited) v RBKC [2020] EWHC 2381 (Admin). The car lift will serve a large house, Amberwood House, previously owned by Dame Margot Fonteyn. The permission was subject to challenge by the owners of a neighbouring dwelling, Thurloe Lodge, with shared use of the private driveway.

The Judgment, given by David Elvin QC sitting as a Deputy High Court Judge, is notable for a number of reasons.

Expert reports from objectors

The Claimants had submitted extensive expert evidence by way of objection to the application including an expert noise report. The Claimants’ noise expert disputed the findings in the noise evidence submitted with the application that the machinery could operate in accordance with the Council’s standard noise conditions.

The judge noted that the officer’s report did not bring to members’ attention that there was a dispute between noise experts or that it was the Claimants’ position that the proposed noise conditions could not be complied with.

However, the officer’s report needed to be understood in the context of the fact that the Claimants’ noise concerns had been raised in a number of documents and orally before the planning committee by reference to the need to protect the residential amenity. The officer had identified in the report that objectors had suggested that noise from the plant would have an unacceptable impact on residential amenity but that the noise report submitted with the application was “acceptable” and these concerns could be addressed by way of condition.

The Court held that members of the planning committee were not materially misled. Members were aware that an issue as regards noise had been raised. Although the dispute between experts and the reasons for that dispute were not reported to members in the officer’s report, the issue was one which could be resolved by way of conditions which would address the Claimants’ concerns. The Claimants’ complained that if they were right and the noise conditions breached, the residents would have had to put up with the disruption from the works for nothing but the Court did not consider that to be a legal basis for regarding the condition as ineffective or unlawful.

Interestingly, the Court did not consider it “necessary” to apply the dicta of Mrs Justice Andrews in Pagham PC v Arun DC [2019] EWHC 1721 (Admin) even though her analysis would have provided a straightforward way to dismiss the Claimant’s claim. In Pagham, Mrs Justice Andrews held (paragraphs 55 – 56) that:

(1)   There is no obligation on a planning officer to specifically engage with the opinions of a consultant instructed by an applicant for planning permission or an objector

(2)   An officer does not have to give reasons in his report for disagreeing with an assessment made by an expert who has expressed an opinion on a matter within his expertise, let alone where the expert has expressed a view on a matter which the decision maker has to determine, applying planning judgment:

The judge stated that it was difficult to read her analysis as anything other than a statement of general principle, although he noted the Claimant’s submission that the issue in that case was one that fell within the judgment of a planning officer (as opposed to the specialist noise evidence at issue in this case).

However, the Judge did not consider it necessary to go as far as applying her analysis as he found that the claim should be dismissed in any event. In doing so, however, it is notable that he identified a number of factors specific to the case (particularly the fact that the noise concerns could be dealt with by way of condition) to overcome his apparent concern that the officer’s report did not explicitly draw members’ attention to the dispute in the expert evidence. Whether or not the Judge would have followed the Court’s findings in Pagham had those factors not been present is therefore something of a moot point but there does appear to have been some level of reluctance to apply the dicta in Pagham given that it would seem to have provided a straightforward way to dismiss the claim.

Bundles for virtual hearings:

The hearing was conducted remotely and used electronic bundles. The judge took the opportunity to reiterate to those preparing bundles the importance of the Administrative Court Guidance Protocol Regarding Remote Hearings and the Administrative Court office guide – COVID-19 measures and the informal advice given by Mr Justice Holgate, the Planning Liaison Judge on 8 April 2020 (which is set out in the Judgment at paragraph 17). In particular, electronic bundles should be paginated sequentially so that the page numbers shown on the digital bundle correspond with the page count shown by the software and that the bookmarks/tabs used for individual documents actually work so that the documents can be found with ease. The Court repeated the often emphasised (but little heeded) requirement that bundles should not be excessively long.

Other issues

The Court dismissed the Claimant’s other grounds (which related to among other things heritage, residential amenity and the application of the Council’s policy on “basements”).

The Judgment can be found here.

Jack Parker acted on behalf of RBKC