Watson, R (on the application of) v London Borough of Richmond Upon Thames [2012] EWHC 3881 (Admin)

Case No CO/6596/2012[2012] EWHC 3881 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 21 December 2012
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MCKENNA
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF WATSONAppellantv
Between
LONDON BOROUGH OF RICHMOND UPON THAMESRespondentComputer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MS S RING (instructed by Richard Buxton Solicitors) appeared for AppellantMR D SMITH (instructed by Merton and Richmond Legal Services) appeared for RespondentMR S WHALE (instructed by Eversheds) appeared for interested party.
J U D G M E N T

JUDGE MCKENNA:

[1]In this claim John Philip Watson, the claimant, seeks judicial review of the decision of the London Borough of Richmond Upon Thames to grant a planning permission, dated 30 March 2012, in favour of Solum Regeneration Limited, the interested party.[2]By way of background, on 19 December 2011, the defendant's planning committee had resolved to grant planning permission for the redevelopment of Twickenham Railway Station, including a new station concourse and three buildings, which range between seven and two stories in height, and including 115 residential units, A1, A2 and A3 floor space, and ancillary retail development. The resolution to grant planning permission was subject, among other things, to the completion of a section 106 legal agreement. On 29 March 2012, the section 106 agreement was completed. A copy of that agreement, for the sake of completeness, is at tab 8 in the bundle. Planning permission was granted on 30 March 2012. A copy of that permission is at tab 5. The application was accompanied by an environmental statement, following a screening opinion and a scoping report from the defendant which concluded that the development fell within the definition of a schedule 2 project, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which were then in force.[3]The claimant is a resident of 6 Cole Park Road, Twickenham, Middlesex. The claimant is a member of the Twickenham Residents Action Group, known as TRAG, an informal group of residents concerned about the construction of high rise development in Twickenham. TRAG was an objector to the interested party's planning application.[4]The Twickenham Advisory Panel, referred to as TAP, was set up by the leader of the defendant council and comprised a number of non-elected local individuals. Its terms of reference are set out at pages 266 and 267 in the bundle and include the following: "Purpose. "The Purpose of the Twickenham advisory panel is to work with the Council and to advise on and assist in the development and implementation of a blueprint for the regeneration of Twickenham, including the Area Action Plan. "Mandate "The Advisory Panel is charged with assisting in: - Direction. - Overall work programme. - Work with relevant agencies. - Advice guidance and technical support. - Promote funding solution, including fundraising. - Safeguarding the implementation of specific proposals or projects. - Recommendations to the Leader of the Council."[5]Under the heading "Functions of the Advisory Panel," the following appears:
"The task of the Panel is it to consider matters relating to the development of Twickenham, including the production of the Area Action Plan and any actions or activities which may arise from this; receive commissions from the Area Action Plan, when applicable; specific site projects; research and analysis. "
Performance of the Panel's functions "The Panel will perform its functions and conduct its proceedings in public. Require minimum attendance of six meetings a year. Recommendations mainly made to the cabinet and to the Leader of the Council. "Scope of Advice "When advising the Cabinet, the Panel should be free to recommended any action which they consider appropriate." By an order of 22 October 2012, Mrs Justice Lang granted permission to apply for judicial review under grounds 1 and 2, but not 3, expedited the case and granted a protective costs order limiting the claimant's liability to pay the costs of the defendant and interested party to £10,000 in total and limited the defendant's liability to pay the costs of the claimant to £25,000 in total.[6]Both grounds 1 and 2 are allegations that the defendant failed to take into account a material consideration. Ground 1 relates to an alleged failure to take into account a report produced by TAP, "The TAP Report", a copy of which is at pages 268 and following in the bundle, whilst ground 2 relates to an alleged failure to take into account, properly or at all, what has been referred to throughout as Plan B, produced by TRAG, a plan which was in fact professionally assembled by Metropolis Planning and, Odyssey Consulting Engineers.[7]The application leading to the grant of planning permission in this case is in fact the third in relation to Twickenham Railway Station in the last two years. The first application, under reference 10/1972/FUL was for enabling works comprising a podium deck or raft over the railway, on which the new station development and a significant element of residential development was to be sited. That application was withdrawn. A second application for a comprehensive redevelopment of the railway station, including the provision of 165 flats and retail development in three buildings, ranging in height between eight and three stories, was submitted in September 2010 under reference 10/3465/FUL. As I understand it, this application has yet to be determined and is still live.[8]The development with which this court is concerned is a revision to that second proposed scheme with the overall height of the scheme reduced. This revision followed detailed discussions with the defendant and other interested parties. This proposed development omitted any on site affordable housing and proposed a reduction of the height and massing of all three blocks when compared with the earlier (second) application.[9]Policy DM DC3 was adopted on 1 November 2011 in advance of the interested party's scheme being considered at committee on 19 December 2011. This policy prescribes building heights of up to four or five stories at the highest point and stepping down to two or three stories at the station. It provides that variation from these heights will only be acceptable where a detailed townscape study is undertaken and where there is significant local support for the public benefits of the overall scheme. The policy is to be found at tab 14 in the bundle, pages 426 and 427, the material sections of which are as follows:
"Taller buildings Taller Buildings will be inappropriate in all areas of the borough except the identified areas within Twickenham and Richmond (Maps 2 and 3). Proposals for taller buildings within these areas will need to: [various bullet points are provided] ... "•On the station – buildings up to 4/5 storeys at the highest point and should step down to 2/3 storeys towards Cole Park Road ... "
Any buildings or features taller than the above will only be acceptable subject to a full design justification based on a comprehensive townscape appraisal and there being significant local community support for the public benefits of the overall scheme."[10]In fact the development exceeded the four to five storey height specified in policy DM DC3, but a townscape assessment was provided as part of the application documentation.[11]The interested party argued that the amount of development proposed and the lack of affordable housing was necessary in order to make the overall scheme viable, and in particular to fund the provision of the new station facilities. This involved the construction of what has been referred to as a "podium deck" and which, as I understand it, has a marked effect on the scheme's viability, as well as its overall height. That deck supports the new station ticket hall in what is said to be the only acceptable location and enables the delivery of a substantial quantity of residential units. It will cost between £3 million and £4 million and, as a result, the argument runs that more residential units are required in order to offset the costs of the podium deck, so-called enabling development. The officer's report, tab five, pages 64 and following, summarises the proposal as follows, under the heading "Summary":
"The proposed development provides an opportunity to redevelop the area of Twickenham Railway Station providing some key improvements to the station itself benefitting residents, employees of the borough, visitors and rugby/concert crowds these being: • A modern new station entrance and ticket hall sited closer to the town centre • Lifts from the ticket hall to all platforms • Significant improvements to the platform environment including improved facilities and a new secondary over bridge (subject to Outer London Bid). "
Insofar as improvements to the immediate area surrounding the station, the following are secured through this development: • Improved public transport interchange facilities with lifts to a new taxi rank, car Park and drop off area. • An increase in and improved commuter cycle facilities. • A riverside walk linking the site and the town centre to Moormead Park. • A public plaza in front of the station entrance bordered by a new bus stop on London Road and complimentary shops and cafes. • Ecology improvements to the river Crane environment both on and off site. "It is considered that the redevelopment of the station and its immediate environment would provide a catalyst for the regeneration of the northern approach into the town centre benefitting Twickenham as a whole particularly as a gateway to the town and to Twickenham Stadium. "The design and architectural approach is considered acceptable providing a modern and sustainable building to the frontage of London Road with a traditional design fronting the River Crane and Cole Park Road. The heights of the buildings exceed the requirements set out in local policy however they are considered to provide a suitable transition between the height of Regal House and the recently erected hotel and the two storey houses in Cole Park Road with a mass that is broken into three blocks where the articulation and geometry is such that the scale and mass is considered to be suitable in the context of a town centre location and providing a gateway into Twickenham. "A key component of the development is the erection of a raft over the railway tracks which would allow the provision of the station entrance direct and closer to the platforms, closer to the town centre and would provide a public plaza in front of it. "The cost of the erection of the raft is in part informed by the need for the closure of the station and the railway lines to allow engineering works to take place in limited time periods (possessions) which in themselves drive up costs. "The applicant has demonstrated with a financial viability study that has been independently verified that subject to the build costs being as predicted (including the raft) the level of enabling development needs to be as proposed (115 residential units and 734sqm of retail space). Whilst the building heights exceed those set out in Policy DM DC3 and the relevant SPD and no affordable housing is provided the securing of substantial rail investment and improvements as described above are considered by officers to be of greater planning benefit to the revitalisation of Twickenham town centre in accordance with Core Strategy Policy CP9 and the UDP Proposal Site (T17). "The financial contributions to negate the impact on infrastructure and community facilities is limited to a significant contribution towards education and ecological improvements to the River Crane. "A phased development of the raft and temporary facilities and then the enabling development would allow the Council to assess actual costs, sales and profit against those predicted in the viability statement to enable the claw back of contributions towards infrastructure and community facilities, most notably affordable housing. This will be secured as part of the S106 legal agreement."[12]It recommended the granting of permission subject to the completion of a section 106 agreement and no adverse direction from the Greater London Authority.[13]To support the objections made by the claimant in advance of the 19 December Planning Committee meeting, a local architect and member of TRAG, Richard Mellor of Landmark Architecture, undertook to prepare an alternative proposal which was said:
"... to deliver a new station, to meet network rail and transport for London's requirements, yet was compliant with the building heights identified in DM DC3 and contains sufficient enabling development to render the scheme viable."
It is these proposals which have been referred to as Plan B.[14]Plan B was submitted on 1 December 2011 as part of TRAG's objection to the interested party's application. In its covering letter, TRAG made it clear that the scheme had been fully costed and that a detailed costs analysis had been prepared, which could have been, but in fact was not, made available to the defendant for independent assessment.[15]Under the heading "Alternative Development", page 162 in the bundle, the officer records the following:
"Local residents are aware of and have commented upon alternative development proposals being circulated in the community but that are not formally submitted to the Council in the form of a planning application. These proposals hence have not been the subject of detailed scrutiny by Council planning officers. In this respect Members should note that any alternative proposal is required by the SPD (Twickenham Station and Surroundings) to optimise benefits to the town centre and the public transport interchange. Furthermore the SPD recognises that building across the tracks is a possible option, subject to consideration against other planning policy which includes in Proposal Site T17 and Core Strategy Policy CP9."
[16]The first addendum report provides under the heading "Late letters received", page 199:
"Twickenham Residents Action Group (TRAG) have submitted an alternative proposal for the site that should be considered as part of TRAGs ongoing objection to the Solum application. It is alleged that this presents a policy compliant, viable alternative to the formal planning proposal. TRAG’s position remains that the consideration of an alternative design should be done by the applicant (whether or not there is an alternative scheme prepared by the community) and until it has been no weight can be afforded to the viability argument that has been advanced by Solum. "
At the time of writing no detailed cost information has been submitted to verify if this alternative proposal is viable."[17]TAP had been expressly briefed to organise a public event in respect of the proposed development which took place in July 2011 at which the interested party and the senior officers from the defendant fielded questions from the local residents. After further correspondence between TAP and the interested party, TAP wrote the TAP Report on the development, which is dated 7 December 2011. That report was sent to the leader of the council and officers concerned with planning policy, but, significantly, not those working directly on the planning application in question.[18]On 9 December, in a section entitled "Viability", that report identified a number of ways in which the height of the development could be reduced. That section concluded by asking whether it was reasonable for the interested party to attest that there was no Plan B when clearly it was possible to reduce the mass proposal significantly in sensitive areas, particularly for residents of St Mary's Terrace and Cole Park Lane. In a section entitled "Conclusions", the following appeared, at 281 and 282 in the bundle:
"• The conclusion drawn by TAP from its enquiry and work on the station application is that unfortunately there are serious areas of concern which cannot be easily reserved to further detailing of the design and construction method post-consent. "• Whilst the height and mass of the development is explained in terms of viability, it is not sustained in terms of local support, the Station Area SPD or the impact on adjoining residents. "• There is no explanation of why the £580k unallocated s.106 funding has not been used to subsidise the scheme and reduce its height and mass in response to local consultation. "• The securing of additional financial support would take the pressure off the design and the loading of apartments over the Station in an environment that is subject to high noise pollution, railway vibration and event-day operations and in a form that will be less prejudicial to the future expansion of the station and cast the Riverside Walk in less permanent shadow. "• Given its current condition and failings together with its strategic importance it feels extraordinary that no other funding is available to support the improvements to Twickenham Station. "• We would therefore commend a 'Plan B' proposal for the Station which is not driven purely by the imperative of maximising 'enabling' residential value and is instead in line with Planning Policy, responds to concerns with respect to the impact on local amenity and economy, provides substantive improvements in event-day operations and passenger capacity – in other words a Station that is fit for purpose future proof and a source of real pride and confidence in the regeneration of Twickenham. "• TAP does feel that the position Solum has taken has really restricted its work and what we have been able to achieve particularly Solum’s refusal to develop a Plan B as well as their arguably defensive and evasive approach to a number of questions from TAP some of which still remain unanswered."
[19]The section of the officer's report which deals with consultations merely states, "Twickenham Advisory Panel, no comments received at the time of the writing." The first addendum to the officer's report, dated 16 December 2011, provides, under the heading "Other Information":
"Members will be aware that the Twickenham Advisory Panel have reported their findings of the application to the Leader of the Council (Lord True) on the back of the public event held in July 2011. "
This response has not been submitted against the planning application or formally to planning officers and as such the comments therein are not considered material in the consideration of this application."[20]The committee therefore did not have the TAP Report before them, nor was it advised on its contents, and, indeed, it was advised that the report was not material. The leader of the council has recently commented on the TAP Report in a press release, which is at 288 in the bundle, in these terms:
"Unfortunately -- and this was a result, not of conspiracy, but poor communication -- this very thorough Report was not presented in time to be considered before the planning committee nor, because of Christmas leave, did I myself see it until the New Year."
[21]As I have already indicated, the defendant's planning committee accepted their officer's recommendation and resolved, subject to no adverse direction from the Greater London Authority, subject to conditions and informatives, and subject to the interested party entering into a section 106 agreement to grant planning permission. The minutes are at tab 7, pages 195 and 196, and include the following at page 196:
"The Committee considered the information provided by officers and the points raised by speakers. Members considered the merits of the scheme and balanced this against the perceived disadvantages of the proposal. Members discussed the design of the scheme and the height of the buildings, considering whether departure from the Council’s Development Management Plan and Supplementary Planning Guidance could be justified in the context of the provision of enhanced station facilities and new public realm. The Committee considered the lack of provision of affordable housing and whether this was acceptable in the context of the viability study and the section 106 financial obligations that were proposed. "
The Committee considered the impact on the street scene and neighbouring amenity in the vicinity of the site, and in particular whether the height and scale of the proposal would create a sense of enclosure for the residents of Mary’s Terrace. It was recognised that there were disadvantages to the scheme, but Members considered that the benefits of the scheme outweighed the potential harm, and that the conditions secured would mitigate the harm. Members were concerned about the lack of disabled toilet facilities at the station site and about potential construction issues for residents of Mary’s Terrace and Cole Park Road." Then the resolution is recorded.[22]On 29 March 2012, the section 106 agreement was completed and the next day planning permission was granted. At tab 5, pages 60 to 63, are to be found the summary reasons for granting planning permission. They include the following passages, which are material:
"The proposal has been considered in the light of the development plan, comments from the GLA and other statutory consultees and third parties (where relevant), the National Planning Policy Framework and compliance with Supplementary Planning Guidance as appropriate. It has been included that the proposal accords overall with the Development Plan and where there are material non-compliances, the determination has considered that other overriding planning considerations should be attached greater importance. It is hence considered that the proposal accords with section 38(6) of the Planning and Compulsory Purchase Act 2004. "
The main planning benefits of the scheme including the provision of a modern, accessible railway station, improved interchange facilities and new public space would provide a catalyst for the regeneration of the northern approach to the town centre and an improved facility serving the local rugby stadia, specifically the RFU stadium for the Rugby World Cup in 2015. These significant benefits of which there is local community support have been carefully considered, balanced and found to outweigh the key material non-compliances of the scheme which are the non-provision of affordable housing, the building heights exceeding SPD and the impact of the structure on certain elements of the community infrastructure and facilities in Twickenham." Later in the document the following appears:- "The proposal has been submitted with a comprehensive townscape appraisal setting out the design justification required by Policy DM DC3. In this respect the design and architectural approach is considered acceptable providing a sustainable development of modern buildings to the London Road frontage and a building of more traditional appearance and scale fronting the River Crane and Cole Park Road. The heights of the buildings exceed the requirements set out in Policy DM DC3. However they are considered to provide a suitable transition between the commercial building forms and heights of Regal House and the Travel Lodge hotel on London Road and the two storey houses found in the neighbouring residential streets of Cole Park Road and Mary's Terrace ... "The cost of the erection of the raft is in part informed by the need for the closure of the station and the railway lines to allow engineering works to take place in limited time periods (possessions) which in themselves drive up costs. The applicant has demonstrated with a financial viability study that has been independently investigated that subject to the bill costs being as predicted (including the raft) the level of enabling development needs to be as proposed based on current market valuations of the 115 residential units and 734sqm of commercial floor space. Whilst the building heights exceed those set out in Policy DM DC3 and the relevant SPD and no affordable housing is provided as the viability would be eroded should market unit prices not be achieved throughout the development due to the provision of affordable housing. Furthermore, no public subsidy will be allocated for the provision of affordable housing on site due to the additional cost of off-setting the reduced gross development value generated by the remaining market units. "The securing of a substantial rail investment and improvements as described above are considered to be of greater planning benefit to the revitalisation of Twickenham town centre in accordance with Core Strategy Policy CP9 and the UDP Proposal Site (T17). With regard to heights of the buildings, there has been significant local community support for the public benefits of the overall scheme including the improvements to the station and its immediate surroundings as listed above." Finally this paragraph appears:- "At a early stage of the development, the Council in its Scoping Opinion expressed the view that the wider study of the alternatives to massing ought to be carried out. However, in light of information submitted in ES and the Council's conclusions regarding the acceptability of the final design and massing of the development proposed, the Council is firmly of the view that further analysis of alternative layouts, massing and building heights, or other relevant aspects of the proposals, is not bad."[23]I turn now to review the relevant legal principles. The duty of a local planning authority when deciding a planning application is to be determined in accordance with section 48(6) of the Planning and Compulsory Purchase Act 2004, and with section 70(2) of the Town and Country Planning Act 1990. Both sections refer to the concept of material considerations which may form part of the planning assessment.[24]Compliance with the plan is a question which must be answered by reference to the plan as a whole. As Mr Justice Sullivan, as he then was, put it in R v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) [2001] JPL 470, paragraphs 46 to 50:
"46. Since development plans contain numerous policies, the local planning authority must have regard to those policies (or 'provisions') which are relevant to the application under consideration. The initial judgment as to which policies are relevant is for the local planning authority to make. Inevitably some policies will be more relevant than others, but section 70 envisages that the Council will have regard to all, and not merely to some of the relevant provisions of the development plan. "47. In my judgment, a similar approach should be applied under section 54A. The local planning authority should have regard to the provisions of the development plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be 'in accordance with the plan'. "48. It is not at all unusual for development plan policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: "is this proposal in accordance with the plan?"
The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach. In City of Edinburgh Council v. the Secretary of State for Scotland [1997] 1 WLR page 1447, Lord Clyde (with whom the remainder of their Lordships agreed) said this as to the approach to be adopted under section 18A of the Town and Country Planning (Scotland) Act 1972 (to which section 54A is the English equivalent): "'In the practical application of section 18A, it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it.' "49. In the light of that decision I regard as untenable the proposition that if there is a breach of any one policy in a development plan a proposed development cannot be said to be 'in accordance with the plan'. Given the numerous conflicting interests that development plans seek to reconcile: the needs for more housing, more employment, more leisure and recreational facilities, for improved transport facilities, the protection of listed buildings and attractive land escapes et cetera, it would be difficult to find any project of any significance that was wholly in accord with every relevant policy in the development plan. Numerous applications would have to be referred to the Secretary of State as departures from the development plan because one or a few minor policies were infringed, even though the proposal was in accordance with the overall thrust of development plan policies. "50. For the purposes of section 54A it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein.[25]Whether something is a material consideration in a particular planning decision will depend on the facts. The court's supervisory jurisdiction is limited to asking in respect of any reported materiality error, whether the excluded item or matter was, when seen in context, of such obvious importance that it would have stood a real chance of having made a difference to the outcome of the decision had it been taken into account, bearing in mind the wide margin of discretion which the courts allow to decision makers to determine the scope of their enquiry. Weight of course is entirely for the decision maker, absent perversity.[26]In Bolton Metropolitan Borough Council v Secretary of State,

Lord Justice Glidewell, with whom the other members agreed, said as follows at 351:

"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision. And when the tests are whether a work is likely to be in the national interest and is essential for one or more of the purposes specified, it is not easy to assert of a particular consideration that the ministers were legally bound to have regard to it. "
Questions of degree can arise here and it would be dangerous to dogmatise. But it is safe to say that the more general and the more obviously important the consideration, the readier the court must be to hold that Parliament must have meant it to be taken into account." Then at 352, he set out a number of principles, as follows:
"1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J.'s judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments, have the same meaning. "2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might' I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account. "3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account. "4. As Hodgson J. said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case. "5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account. "6. If the judge concludes that the matter was 'fundamental to the decision,' or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid. "7. (Though it does not arise in the circumstances of this case). Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant to any relief."
[27]When assessing whether a planning decision maker erred in law in relation to the existence of an alternative site on which an identified need might be met, or in relation to the competing merits of an alternative proposition for the application of the site, the courts will intervene only in exceptional circumstances given the degree of planning judgment involved and the primary focus of the decision maker's decision. This is even more so where a proposal is acceptable in planning terms.[28]I was referred to a number of authorities but the most relevant on this issue, it seems to me, is Mount Cook [2003] EWCA Civ 1346, a decision of the Court of Appeal, and particularly the judgment of

Lord Justice Auld, at paragraph 30, under "Conclusions", when the following appears:

"Mr Corner, in the course of his submission, put forward the following general propositions, which, with some slight additions, I accept as correct statements of the law and as a useful reminder and framework when considering issues such as this. They are: "1. In the context of planning control, a person may do what he wants with his land provided his use of it is acceptable in planning terms. "2. There may be a number of alternative uses from which he could choose, each of which would be acceptable in planning terms. "3. Whether any proposed use is acceptable in planning terms depends on whether it would cause planning harm judged according to relevant planning policies, where there are any. "4. In the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site or of the same use on the alternative sites are normally irrelevant in planning terms. "5. Where, as Mr Corner submitted is the case here, an application proposal does not conflict with policy, otherwise involves no planning harm and, as it happens, includes some enhancement, any alternative proposals are normally irrelevant. "6. Even, in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those that are unlikely or have any real possibility of coming about would not be relevant or, if they were, should be given little or no weight."
I bear in mind this guidance when approaching my consideration of the two grounds of challenge to the grant of permission, to which I now turn.[29]Ground 1: it is the claimant's case that the defendant's decision was unlawful, in that it failed to take into account a material consideration, namely the TAP Report, which, it is said, falls into the second category of cases referred to by Lord Justice Glidewell in the Bolton case and, therefore, it follows that it is for this court to decide whether it is a matter which the decision maker should have taken into account and, if the matter is either fundamental to the decision or there is a real possibility that consideration of the matter would have made a difference, then the court may quash the decision, and, says the claimant, the TAP Report was plainly material in that, at the very least, there was a real possibility that the consideration of the matter would have made a difference to the decision.[30]In support of that proposal, the claimant relied on the factors I have previously recorded, that TAP's terms of reference provided that the functions of the panel included the task of considering matters relating to development of Twickenham and site specific projects, that it was mandated to make recommendations to the leader of the council, it was briefed by the defendant's officers, who organised a public event, and was, therefore, it is said specifically engaged on this specific planning application. Moreover, the TAP Report, on its face, records that it was prepared for the leader of the council and council officers and set out the conclusions of the TAP members on the proposed development, and indeed expressly referred to the application and was delivered in time for the relevant committee meeting. It is also said in support of the claimant's submission that the officer's report specifically identified TAP as a consultee and it was referred to in the terms which I have already recorded in the addendum officer's report.[31]In further support of his contention, the claimant also prays in aid what was said by the leader of the Council in May 2012, to which I have previously referred, and to an email from Paul Chadwick, the defendant's Director of the Environment, which is at 284 in the bundle. In respect of that email, emphasis is placed on the view that consideration of TAP's views was said to be important and was part of the consultation process.[32]In all the circumstances, therefore, it is said that TAP's remit provides a reasonable platform for it to have produced a report and for that report to bear material planning consideration, since it goes to the heart of the defendant's justification for granting planning permission, which the claimant says was in conflict with the site specific policy, namely height in DM DC3 and, therefore, any suggestion that it is not relevant is unsustainable. The policy conflict generated a requirement to consider an alternative policy compliant form of development. If that be right, given the officer's advice was that it was not material, then, the claimant submits, that that amounts to a failure to have regard to a material consideration and, at the very least, there was a real possibility that consideration of the report would have led to a different decision.[33]A key plank in the claimant's argument, therefore, is an assertion that the planning application was in conflict with Policy DM DC3. In this regard, the claimant relies on the contents of the summary reasons for granting planning permission and the minutes of the meeting, the relevant sections of which I have recited and a fair reading of which, it is said, leads to the conclusion that there is a conflict. In particular, the claimant relies on the reference in minutes page 196 to the following sentence:
"Members discussed the design of the scheme and the height of the buildings, considering whether departure from the Council's Development Management Plan and Supplementary Plan Guidance could be justified in the context of the provision of enhanced station facilities and new public realm. And to references of material non-compliances in the summary reasons."
[34]However, this argument overlooks the defendant's actual conclusion, stated expressly in the summary reasons, that the proposal accords overall with the development plan when considered as a whole, a conclusion reached after taking into account the three key material non-compliances referred to. Moreover, reasons are given as to why the proposals accord with DM DC3 by reference to the proviso to DM DC3 to which I have referred, at page 427 of the bundle. Both elements of the proviso were considered and found to be satisfied. A townscape appraisal had been submitted and justified a greater height, see the penultimate paragraph on page 60, and significant local community support was recorded, see page 61, third paragraph.[35]Applying the judgment of Mr Justice Sullivan, as he then was, in Milne, I regard the proposition that, even if, which I do not accept for the reasons set out above, that the proposed development was in breach of the height policy in DM DC3, it could not be said to be in accordance with the development plan as untenable. In those circumstances there was no necessity for the defendant, applying the line of authorities including Mount Cook to consider alternatives but, even here, as it seems to me, the claimant is in difficulty, having regard to the contents of the first full paragraph on page 63. Given that the design, including in particular height, was found to be acceptable and given that the defendant did consider whether the analysis of alternatives was warranted, and decided it was not, there is no real possibility that a report repeating what others had said, would have made a difference to the decision, and, as it seems to me, ground 1 therefore fails.[36]For the sake of completeness, I do not accept the submission that, whatever its substance, the TAP Report was required to be considered simply because it was submitted by TAP. The statutory code affords particular rights to particular organisations to consult it. TAP is not, by any stretch of the imagination, in that category. Its remit did not include making representations on specific planning applications and its request was not even sent to the planning officers actually dealing with this application, a fact which perhaps bears that point out.[37]In the circumstances, there is no need for me to go on to consider in any detail the second ground relied upon by the interested party but, having regard to the contents of Appendix 1 to the interested party's summary grounds, it does seem to me that each of the points taken by TAP was in fact considered and on that basis, too, ground 1 fails.[38]Ground 2: it is said that the defendant's decision was also unlawful in that it failed to take into account, properly or at all, Plan B, an alternative, which was said to be compliant with DM DC3's height requirement, viable and therefore a material consideration. I can deal with this ground very shortly. Given my conclusion that there was in fact no conflict with the development plan when considered as a whole, and given that the defendant concluded that the proposal would not cause harm to the townscape and the built environment, there was no requirement to consider alternatives such as Plan B applying the test adopted in Mount Cook. This ground too fails.[39]In any event it is clear from the officer's report that consideration was given to Plan B, with its details being summarised and the members being advised, as was the case, that no detailed cost information, although said to exist, had been submitted to verify its viability, and of course weight, absent perversity, is a matter for the decision maker.[40]For all these reasons, therefore, I would dismiss this claim.

JUDGE MCKENNA:

[41]Does anybody want to tell me what they think the order should be? Claim dismissed? Costs?[42]MR SMITH: My Lord, claim dismissed. I appear for the defendant. There is of course, as my Lord has indicated, a PCO.

JUDGE MCKENNA: Yes.

[44]MR SMITH: Subject to that, and subject to the cap within it, I seek my costs.

JUDGE MCKENNA:

[45]Right. Ms Ring?[46]MS RING: My Lord, no. We accept costs. Subject to a PCO limit of £10,000, we accept an order that the claimant pay the defendant's costs.

JUDGE MCKENNA: So C pay D's costs of the claim?

[48]MS RING: It is D and, for the avoidance of doubt, the IP's costs. The IP is not claiming costs, as I understand it, but just for the avoidance of doubt.

JUDGE MCKENNA:

[49]All right, yes. So the order you want is the claimant to pay the defendant and the interested party's costs of the claim. Such costs to be limited to £10,000?[50]MR SMITH: I would invite my Lord to assess them and limit it to £10,000. Assess them at £10,000, having regard to the limit.

JUDGE MCKENNA: You are happy with that, are you?

[52]MS RING: I would simply say the wording should be "limited to £10,000."

JUDGE MCKENNA: Yes, limited to £10,000.

[54]Anything else? No? Good. Thank you.[55]MS RING: My Lord, sorry, I do ask for permission to appeal.

JUDGE MCKENNA: Do you want to elaborate on why?

[57]MS RING: Yes, my Lord. CPR 52 applies. I am applying on the basis that any application for permission to appeal would be granted if it has real prospects of success, or there is any other compelling reason. I say that, with respect obviously to your Lordship, your Lordship has erred in law in finding, amongst other things, that there was a compliance with the development plan.

JUDGE MCKENNA: Yes.

[59]MS RING: That is one issue. I think actually quite a lot flows from that, in terms of then consideration of alternatives. I say that we do have real prospects of success. Your Lordship will recall that we were given permission for judicial review and that there was an arguable case. I would need to review the transcript to see what other issues --

JUDGE MCKENNA:

[60]It is very difficult on the hoof, particularly when you have not had a draft to formulate sensible grounds.[61]MS RING: Yes.

JUDGE MCKENNA: All right.

[63]MS RING: Those are my submissions.

JUDGE MCKENNA:

[64]I would like to think I have got it right, and have the courage of my convictions. I do not believe that the proposed appeal has a realistic prospect of success. Obviously, you can renew your application elsewhere and they may take a different view, but permission refused.[65]MS RING: My Lord, could I ask for expedition of the transcript?

JUDGE MCKENNA:

[66]I see no reason why not. Yes.[67]MS RING: Thank you. Could I also ask for an order that the time for filing the appellant's notice be extended from 21 days to 28 days in the light of the holiday period.

JUDGE MCKENNA: Any objection?

[69]MR WHALE: My Lord, yes.

JUDGE MCKENNA:

[70]I thought you might have because of the time constraints. Is that it?[71]MR WHALE: I didn't catch that, my Lord?

JUDGE MCKENNA: Is it that, because of the time constraints, you want to get on with development?

[73]MR WHALE: Indeed, we do, my Lord, and, in fact, I was, in anticipation of this application, actually going to ask my Lord to abridge the time shortly for filing the appellant's notice -- 4 January, and possibly the 7th I had in mind, and certainly not extending the timescale. Nothing has really been put forward as to why it ought extended. I say it ought to be kept at 21, as is the normal, or indeed something slightly shaved off that, because, as you rightly say, my clients are keen to progress this matter.

JUDGE MCKENNA:

[74]Yes, as it seems to me, on the one hand, where expedition has been ordered and, on the other hand, where there is an application to extend time to appeal, there is a tension. I will not accede to your application to shorten the time but I will not accede to the application to extend it either. The normal period of 21 days will apply.[75]Yes, thank you all.