Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities & Ors
[2024] EWHC 452 (Admin)
Save Smallbrook, R (on the application of) v Birmingham City Council
10 September 2024
[2024] EWHC 2535 (Admin)
High Court
A group tried to stop Birmingham City Council from demolishing a building. They argued the Council didn't properly consider the environmental impact and alternative plans. The judge said the Council's decision, although not perfect, followed the rules, and even if it didn't, the result would have been the same. So, the challenge failed.
Key Facts
- •Birmingham City Council granted planning permission for the demolition of the Ringway Centre and construction of a new development.
- •SAVE Smallbrook, an unincorporated association, challenged the decision via judicial review.
- •The challenge focused on the Council's consideration of embodied carbon and alternative development proposals.
- •The Council's decision was based on officer reports (OR1 and OR2) that considered embodied carbon and a counterproposal but ultimately prioritized the new development.
- •The High Court previously quashed a Secretary of State decision relating to a similar case (Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 4542 (Admin)).
- •The claimant argued that the Council erred in not adopting a presumption in favor of retaining existing buildings as per paragraph 152 of the NPPF.
- •The claimant also argued the council's reasoning was unintelligible and inadequate regarding a counter-proposal for the Ringway Centre
Legal Principles
There is no general common law duty to give reasons for granting planning permission.
R(CPRE Kent) v Dover DC [2018] 1WLR 108, at [59]
Where reasons are required, they must be intelligible and adequate, enabling the reader to understand why the decision was made.
South Bucks District Council and Another v. Porter(No 2) [2004] 1WLR 1953
Regulation 30 of the EIA Regulations imposes a duty on local planning authorities to publish "the main reasons and considerations on which the decision is based".
EIA Regulations 2017
Paragraph 152 of the NPPF encourages reuse of existing resources but does not create a presumption in favor of retention.
Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 4542 (Admin) at [54]
Supplementary planning documents are not part of the statutory development plan and are not local plan policies. They can only amount to material considerations.
M&S case per Lieven J. at [40]
The principles set out in R (Mansell) v Tonbridge and Malling BC [2017] EWCA Civ 1314, [2019] PTSR 152, per Lindblom LJ at [42], are applicable here.
R (Mansell) v Tonbridge and Malling BC [2017] EWCA Civ 1314
Section 31(3D) of the Senior Courts Act 1981 applies if the outcome would have been the same notwithstanding the alleged error.
Senior Courts Act 1981, section 31(3D)
Outcomes
Permission to apply for judicial review was refused.
The court found both grounds of challenge unarguable. The Council's consideration of embodied carbon and alternative proposals, while not perfect, did not constitute a material error of law. Even if an error had been made, the court applied section 31(3D) of the Senior Courts Act 1981, concluding the outcome would have been the same.
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