Kenneth Thomas, R (on the application of) v London Borough of Lewisham [2026] EWHC 1840 (Admin)

[2026] EWHC 1840 (Admin)Case No AC-2025-LON-004243
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice,Date 21/07/2026
Strand,
London,
WC2A 2LL
Before
Timothy Corner KCSitting as a Deputy High Court Judge
Between
The King (on the application of Kenneth Thomas)ClaimantLondon Borough of LewishamDefendantTribe Grove Street LimitedInterested Party
Jenny Wigley KC and Claudia Hyde (instructed by Southwark Law Centre) for ClaimantCharles Merrett (instructed by Womble Bond Dickinson) for DefendantThomas Hill KC and Daniel Stedman Jones (instructed by Howard Kennedy) for Interested PartyHearing Hearing dates: 23 June 2026
Approved JudgmentThis judgment was handed down remotely at 10am on Tuesday 21 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Timothy Corner KC:

[1]In this claim for judicial review, the claimant challenges the grant of planning permission (ref: DC/24/135192) (“the permission”) by the defendant (“the council”) to the Interested Party (“the IP”) on 15 October 2025 for: “Redevelopment of the existing building comprising partial facade retention, and the construction of a building to provide student accommodation (Sui Generis), commercial and office floor space (Use Class E (b)(c)(g)), together with associated landscaping, public realm improvements, access works, cycle parking, refuse/recycling stores and associated works” at Scott House, 185 Grove Street, London SE8 (“Scott House”).[2]The term used for such student accommodation is Purpose Built Student Accommodation, and I will use the abbreviation “PBSA” in this judgment[3]The claimant challenges the council’s decision (“the decision”) to grant planning permission on two grounds: Ground 1: the decision was made having regard to immaterial considerations, namely, planning obligations that fail to secure a policy-compliant development, contrary to the requirements of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”), and/or was made in breach of section 38(6) of the Planning and Compulsory Purchase Act 2004. Ground 2: the decision was irrational in the Wednesbury sense in that:(a) the decision was issued at a point when the council had notice of the fact that Schedule 8 to the section 106 agreement would be rendered redundant and unenforceable by the actions of the interested party in seeking to evict the residents of Scott House and/or:(b) the council failed to take into account material considerations.[4]I granted permission to apply for judicial review on 16 January 2026. BACKGROUND[5]Scott House is a three-storey late-Victorian building consisting of 19 “live/work units”, permission for use as which was secured in 2001 under permission DC/00/4723B. All the units in Scott House were used as conventional housing stock prior to the eviction of its tenants. The Planning Application[6]On 11 March 2024, the council validated planning application DC/24/135192 for the redevelopment of Scott House (“the application”), with the description of development set out at paragraph 1 of this judgment.[7]The application, if implemented, would result in the partial demolition of Scott House, with the northern and eastern elevations retained in the context of a 31-storey building. 502 student housing units are proposed to be delivered, of which 176 would be affordable. None of the existing residential units are to be retained. The Strategic Planning Committee’s determination[8]The application was considered at a meeting on 7 November 2024 (“the committee meeting”). Members of the Strategic Planning Committee (“the committee”) had before them an officer report (“the officer report”).[9]The officer report referred at paragraph 5.2.1 to the objections to the application and where those objections were answered in the officer report, referred at paragraphs 150 onwards to the relevant planning policies including draft local plan policy HO8 (which in the adopted local plan became HO7) and concluded:
“769 In conclusion, the proposed development is considered to be in accordance with the relevant national planning policy guidance and development plan policies. The proposals are wholly sustainable development in accordance with the NPPF and will make an important contribution to the borough in regard to housing supply and increasing upon employment capacity at the site. The proposal is therefore considered to be both appropriate and beneficial. 770 On balance, any harm arising from the proposed development is considered to be significantly outweighed by the benefits listed above, and therefore Officers recommend the proposal is granted permission.”
[10]At paragraphs 166-167 and paragraph 172, potential PBSA providers were referred to. At paragraph 172 it was stated:
“The Applicant has been in discussion with local Higher Education institutions, including Trinity Laban who has expressed their interest in writing. As required by planning policy, a nomination agreement to secure the student accommodation for the students of one or more Higher Education institution(s) would be secured within the section 106 agreement.”
[11]Trinity Laban, which is a Higher Education Provider (“HEP”), expressed its interest in a letter dated 17 August 2023, stating “[w]e are pleased to confirm our support for the proposed redevelopment plans for new student accommodation at Scott House….” and that the location is “ideally suited to the needs of students studying at Laban in Creekside and at Laurie Grove in New Cross. It will also be attractive to our students in Greenwich…”[12]The committee was addressed by the Save Scott House campaign group (which was allowed five minutes to speak), in addition to local councillors who were opposed to the application.[13]In response to concerns regarding support for existing occupiers of Scott House, the case officer stated that the IP had been engaging with the occupiers of Scott House to try to find them alternative accommodation, and that the IP would be “obliged” by the section 106 agreement to assist the occupiers. Members actively engaged with this issue: i) The IP was asked by the Chair of the committee to address the committee on the detail of the support that would be provided, and the IP stated that it would consider “working with…lettings agents” and “produce a strategy that allows us to help put…current tenants in contact” with them “when properties become available”. ii) The IP’s agent also set out the IP’s commitment to honouring the occupiers’ existing assured shorthold tenancies, stating that existing occupiers had “nothing to worry about”. Committee members asked further questions about these responses. iii) Councillors considered that the then current draft of the conditions required strengthening to provide more robust protection to the existing residents and that set a “higher bar”, including a duty to use all reasonable endeavours in assisting existing occupiers with relocation.[14]The chair of the committee asked for a response to the concerns raised regarding the speculative status of the PBSA. The IP’s agent responded that, prior to the occupation of the development, a nominations agreement had to be in place with a higher education institute, stating that this was “a requirement of the London Plan that we will comply with”.[15]The committee voted in line with the recommendation in the officer report to approve the application.[16]The committee was not asked to, and did not, consider the application again before the permission was issued, almost a year later, on 15 October 2025. Matters arising since the committee’s consideration[17]Following the committee’s consideration, but prior to the issue of the permission, the residents of Scott House were issued with notices of eviction under section 21 of the Housing Act 1988 (“section 21 notice/s”) by the IP, requiring that they leave their homes at various dates starting from 16 August 2025. By email dated 11 June 2025, the IP (via its agent) wrote to the tenants in the terms set out in the council’s response to Save Scott House of 13 October 2025, to which I refer below.[18]The claimant has said that he understands that tenants who have sought extensions to their leases and conversion to flexible tenancies pending the progress of the application and development had their requests refused. The Section 106 Agreement[19]The draft section 106 agreement, dated 14 August 2025, was published on 19 August 2025, with members of the public being given nine days in which to comment on its provisions. The Save Scott House campaign group made comments on 28 August 2025. The council responded by letter on 13 October 2025, stating:
“Members resolved to grant planning permission subject to the s106 Agreement securing the submission of a Relocation Strategy to the LPA for Officer assessment. Furthermore, the Developer is obligated to ensure all reasonable endeavours are undertaken to assist the existing…occupiers in their relocation from the existing premises. At the time of the Planning Committee, Officers were advised by the Developer that all tenants were on short term tenancies and so were due to move out this year. The drafting of the s106 has taken longer than expected, however the Developers have engaged with the tenants in accordance with the requirements of the ‘draft”
Schedule 8. The below letter was sent to residents in June, whilst references have been provided. At the time of this response, 11 occupiers were residing at Scott House ‘Dear [Tenant Name]. Relocation Support – Notice of Upcoming Redevelopment – Scott House….. We are writing to inform you that the property you currently occupy at Scott house is scheduled for redevelopment. As a result, your tenancy will come to an end in accordance with the terms of your Assured Shorthold Tenancy (AST) agreement. Your section 21 Notice with guidance notes will be served to you shortly. This is a formal notice and specifies the date by which the property must be vacated. We understand that moving can be challenging, and we are committed to supporting you through this transition. The following relocation strategy has been put in place to assist you: 1 Alternative Accommodation We are providing you with a list of available or upcoming rental properties within our management portfolio across London. If you are interested in renting one of these properties, please contact us promptly as priority will be given to existing tenants. All our available property can be found on Rightmove:…. 2 Estate Agent Referrals To further support your search for new accommodation, we are sharing the contact details of five local estate agents operating in Deptford… 3 References We will provide a landlord reference upon request within three working days of any request… 4 Unforeseen Delays In the event of any unforeseen delays to the redevelopment timeline, we will provide updates as appropriate and explore possible next steps as required. Currently to assist your move we have commenced returning your deposit in full without any deductions. Should you wish to leave earlier we will accommodate this and charge a pro-rata rent up until the date you vacate. 5 Points of contact To assist you throughout this process, please contact. Nikki Rollins… Nikki is available to discuss your individual circumstances and help guide you through the relocation steps. 6 Development Updates We will keep you informed of key redevelopment milestones through regular updates… We appreciate your understanding and cooperation during this time. Our goal is to make your relocation as smooth and supported as possible. Please do not hesitate to reach out to us with any questions or concerns.’” We will provide a landlord reference upon request within three working days of any request… Nikki Rollins…

We will keep you informed of key redevelopment milestones through regular updates…

[20]The final version of the section 106 agreement was signed by the council, the IP and the mortgagee on 15 October, the date of the issue of the permission.[21]Schedule 4 to the section 106 agreement makes provision for student housing. Paragraphs 1.2 and 1.4 deal with the Affordable Student Housing Units. Paragraph 1.3 provides:
“1.3 The Owner covenants: 1.3.1 subject to paragraph 1.4 of this Schedule, not to first Occupy the Student Housing Units until: 1.3.1.1 it has submitted to the Council the Student Housing Nominations Agreement, 1.3.1.2 it has used reasonable endeavours to enter into Student Housing Nominations Agreement/s with a HE Provider or Student Housing Provider 1.3.1.3 it has notified the Council of the Student Housing Nominations Agreement having been entered into, providing details of the HE Provider and / or Student Housing Management Company involved, its duration and any fallback provisions.”
[22]Schedule 4 paragraph 1.5 provides:
“Where paragraph 1.3 of this Schedule applies and the Owners have either 1.5.1 provided the Council with no later than 5 months before the start of the first academic year of the use of reasonable endeavours and the reasons for having failed to enter into a Student Housing Nominations Agreement and the Council have confirmed in writing it is satisfied that the Owner has used reasonable endeavours then from the date of such confirmation, or 1.5.2 provided the Council with evidence no later than five months before the start of the first academic year of the use of reasonable endeavours and the reasons for having failed to enter into a Student Housing Nominations Agreement and the Council have not confirmed in writing by the start of the first academic year that it is satisfied that the Owner has used reasonable endeavours. it is hereby agreed the Owner may directly let the Student Housing Units in the absence of a Student Housing Nominations Agreement/s as set out in 1.8 and 1.9 of this Schedule PROVIDED THAT the Owners shall continue to use reasonable endeavours to enter into a Student Housing Nominations Agreement for the next academic year.”
[23]Student Housing Nominations Agreement is defined as follows:
“… A legally binding agreement or agreements with a HE provider and/or Student Housing Management Company (which may be in the form of a lease or contract or freehold transfer of the relevant Student Housing Units) that secures the operation and management of no less than 50.1% of the Student Housing Units (including all of the Affordable Student Housing Units) by the HE provider and/or Student Housing Management Company (or the Owner on behalf of one or more Higher Education Institutions) during the Academic Year and will grant rights to the Higher Education Institutions to nominate the Student Housing Units for Occupation by Students.”
[24]Paragraphs 1.8 and 1.9 of Schedule 4 are under the heading “Use of Student Housing Units” and provide:
“1.8 The Owner shall not let or allow the Student Housing Units (including the Affordable Student Housing Units) to be Occupied other than by Students during the Academic Year for the lifetime of the Development unless otherwise agreed in writing by the Council. 1.9 Outside of the Academic Year, the restrictions set out in this Schedule restricting use of the Development to Students shall not apply and the Owner may let the Student Housing Units and/or the Affordable Student Housing Units to the general public as short stay accommodation for education related purposes only.”
[25]Schedule 8 to the section 106 agreement provides: “RELOCATION STRATEGY1.1 The Owner shall use all reasonable endeavours to assist the existing tenants on the Land in relocating from the existing premises on the Land through the initiatives set out in the Relocation Strategy.1.2 Not more than 4 months after the date of this deed, a Relocation Strategy shall be submitted to and approved in writing by the Council setting out initiatives to assist all tenants in the moving process, including: -Informing tenants of the end of their tenancy in accordance with the Assured Shorthold Tenancy agreement; -Providing details of any available or soon to be available properties currently under management of the Owner elsewhere in London; -Providing details of five local south-east London estate agents and offering to facilitate direct contact between the agent and the tenant in support of their onward move; -Providing references within three working days of request; -Details of flexible tenancies/rents to facilitate any delays re commencement of development; -Point of contact/s Owner; -Offer of online meetings/in person; -Regular development/timescale updates.1.3 The Owner shall ensure the agreed initiatives are undertaken in full accordance with the provisions of the approved Relocation Strategy.” -Informing tenants of the end of their tenancy in accordance with the Assured Shorthold Tenancy agreement; -Providing details of any available or soon to be available properties currently under management of the Owner elsewhere in London; -Providing details of five local south-east London estate agents and offering to facilitate direct contact between the agent and the tenant in support of their onward move; -Providing references within three working days of request; -Details of flexible tenancies/rents to facilitate any delays re commencement of development; -Point of contact/s Owner; -Offer of online meetings/in person; -Regular development/timescale updates.[26]“Relocation Strategy” is defined in the section 106 agreement as “a strategy setting out initiatives to assist existing tenants as at the date of this Deed in finding alternative residencies.”[27]On 16 October 2025 the IP submitted the Relocation Strategy to the council and on 13 February 2026 the council issued a decision notice to the IP approving the Relocation Strategy. Issue of the permission[28]On 15 October 2025, the council issued the permission. The application was not referred back to the committee following the adoption of the Lewisham Local Plan (“the local plan”) on 16 July 2025, nor was a further officer’s report prepared. RELEVANT PLANNING POLICY AND GUIDANCE[29]When the committee considered the application, the extant relevant local policy document was the Development Management Local Plan (“DMLP”) which was adopted on 26 November 2014.[30]DM policy 8 governed student housing and provided in part:
“1. The council will support proposals for student housing provided that the development:… e. has an identified end user affiliated with an educational institution or student housing management company.”
[31]The DMLP has now been superseded by the local plan, which was formally adopted by the council on 16 July 2025. The local plan together with adopted neighbourhood plans and the London plan (adopted on 1st March 2021) form the council's statutory development plan.[32]Policy HO7 of the local plan now governs the provision of PBSA. It provides in part:
“A. Development proposals for….PBSA will be supported where they robustly demonstrate through evidence that: b.

(s) …”

[33]Paragraph 7.58 of the supporting text states:
“New PBSA must be developed and secured for occupation by students of one or more specific higher education institutions. This is to guard against speculative development and ensure proposals genuinely help to address identified need. Applications must provide evidence of an end user affiliated with an educational provider. They must also demonstrate appropriate management arrangements are in place so that rooms will be rented solely to students over the lifetime of the development, including an identified landlord, agent or management company. The London Plan makes clear that if the accommodation is not secured for use by students and for occupation by members of one or more specified higher educational institutions, development is not considered PBSA and will be considered against policies on shared housing and communal living.”
[34]Policy H15 of the London Plan deals with PBSA. It provides in part:
“A Boroughs should seek to ensure that local and strategic need for purpose-built student accommodation is addressed, provided that:… 2) the use of the accommodation is secured for students”
[35]Paragraph 4.15.3 of the supporting text states in part:
“To demonstrate that there is a need for new PBSA development and ensure that accommodation will be supporting London's higher education providers, the student accommodation must either be operated directly by a higher education provider or the development must have an agreement in place from initial occupation with one or more higher education providers, to provide housing for its students, and to commit to having such agreement for as long as the development is used for student accommodation. This agreement is known as a nomination agreement….the borough should ensure, through condition or legal agreement, that the development will, from the point of occupation, maintain a nomination agreement or enter a new nomination agreement with one or more higher education provider(s) for a majority of the bedrooms in the development, for as long as it is used as student accommodation.”
[36]The Mayor issued London Plan Guidance on PBSA (“the LPG”) in October 2024.[37]Paragraph 3.2.1 of the LPG states:
“The supporting text to policy H15 (paragraph 4.15.3) sets out that nominations agreements are expected to be in place by the point of first occupation. HEPs are unlikely to enter into such agreements until plans and, indeed, construction are sufficiently advanced that they can rely on bed spaces being available when needed (e.g. for the start of a particular academic year). However, any Planning Authority will want to ensure a reasonable prospect of compliance with this policy criterion post permission.”
[38]Paragraph 3.2.2 of the LPG states:
“The best way to provide assurance to the decision-maker assessing a planning application is for the developer to demonstrate engagement with one or more HEPs. This engagement should explore their interest in the scheme, and appetite to pursue further discussions towards a nominations agreement. In doing so, it is advisable to target institutions that are close to or well-connected to the location. To mitigate any risks of non-delivery, this engagement should have advanced sufficiently, such that ideally one or more ‘letters of comfort’ can be provided as early as possible in the process before the decision.”
[39]Paragraph 3.2.7 of the LPG states:
“To fulfil the policy requirements of H15, the developer should be prepared to enter into a S106 agreement as part of the permission. Some flexibility may be needed in legal agreements, given the commercial implications and timescale issues highlighted above. Therefore, the S106 agreement should require developers, as a minimum, to use reasonable endeavours to secure one or more ongoing nominations agreements by the point of first occupation. Consideration should also be given to setting out a fallback position (see below) that should also be secured within the S106 agreement.”
LEGAL FRAMEWORK

LEGAL FRAMEWORK

[40]Section 38 (6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
[41]There is, accordingly, a presumption that planning determinations will be made in accordance with the development plan: R (Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2011] JPL 1458, per Sullivan LJ at [6].[42]Section 38 (5) of the 2004 Act provides:
“If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to become part of the development plan.”
[43]As I have said, the local plan was adopted as part of the development plan on 16 July 2025. The London Plan was adopted as part of the development plan on 2 March 2021. Accordingly, to the extent there is any conflict between policy in the local plan and policy in the London Plan, the conflict must be resolved in favour of the policy in the local plan. Material considerations[44]The law governing when a decision-maker acts unlawfully by not taking a particular matter into account as part of the decision-making process is now well established. In R (Friends of the Earth Ltd and another) v Secretary of State for Transport [2021] PTSR 190, the Supreme Court summarised the proper approach at [116]-[121]. In brief: i) Within the category of considerations are those clearly identified by statute as considerations to which regard must be had; those identified by statute as those to which regard must not be had; and considerations to which the decision-maker may have regard if, in his judgment and discretion, it is right to do so: R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, 1049. ii) There will be some matters “so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] … would not be in accordance with the intention of the Act”: CREEDNZ Inc v Governor General [1981] NZLR 172, 183. iii) The test of whether a consideration falling within the third category is "so obviously material" that it must be taken into account is the familiar Wednesbury irrationality test: Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] PTSR 2063. It is not simply a question of whether a new consideration might realistically be capable of causing the public authority to reach a different conclusion. iv) Determining whether it was irrational not to take a particular matter into account will involve consideration of, amongst other things, the nature of the issue being decided, and the relevance and importance of the new material to that issue: Keep Chiswell Green v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 958 at [82]. Interpretation and application of planning policy[45]The legal principles applicable to such contexts are well-known. The key principles to be applied in interpreting planning policies were authoritatively set out in Tesco Stores Limited v Dundee City Council [2012] PTSR. 983 at [17]-[22] and Canterbury City Council v Secretary of State for Communities and Local Government (“Canterbury”) [2019] PTSR 81 at [23]. The principles of relevance to the instant case may be summarised as follows: i) Planning authorities must proceed upon a proper understanding of the development plan, as is required by statute. In particular, planning authorities must consider whether the proposals before them are in accordance with the development plan and whether material considerations justify departure from the plan. ii) The proper interpretation of the plan is a matter for the court, interpreting the policy objectively in accordance with the language used and read in its proper context. iii) Equally, policies should not be construed overly legalistically as with statutes or contracts, but rather as broad statements of policy. iv) (see Canterbury at [23]) “For the purposes of interpreting the meaning of the policy it is necessary for the policy to be read in context. The context of the policy will include its subject matter and also the planning objectives which it seeks to serve and achieve. The context will also be comprised by the wider policy framework within which the policy sits and to which it relates. This framework will include, for instance, the overarching strategy within which the policy sits.”[46]Kimblin J said in Mudford Parish Council v Somerset Council and Abbey Manor Group [2026] EWHC 1166 (Admin) at [46]: “As to reading the whole, policies in a local plan are set out and drafted so that the reader knows which parts of the text are the policy and which parts of the text describe and explain the policy. Per Richards LJ in R (Cherkley Campaign Limited) v Mole Valley DC [2014] EWCA Civ 567 at [16] ‘….when determining the conformity of a proposed development with a local plan the correct focus is on the plan’s detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of the policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy. I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text. That applies even where, as here, the local plan states that the supporting text indicates how the policies will be implemented.’” (NB in this judgment I will refer to the Cherkley case cited above as “Cherkley”). ‘….when determining the conformity of a proposed development with a local plan the correct focus is on the plan’s detailed policies for the development and use of land in the area. The supporting text consists of descriptive and explanatory matter in respect of the policies and/or a reasoned justification of the policies. That text is plainly relevant to the interpretation of the policy to which it relates but it is not itself a policy or part of a policy, it does not have the force of policy and it cannot trump the policy. I do not think that a development that accorded with the policies in the local plan could be said not to conform with the plan because it failed to satisfy an additional criterion referred to only in the supporting text. That applies even where, as here, the local plan states that the supporting text indicates how the policies will be implemented.’” (NB in this judgment I will refer to the Cherkley case cited above as “Cherkley”).[47]As set out by Holgate J in Trustees of the Barker Mill Estates v Test Valley Borough Council [2017] P.T.S.R. 408 at [84]:
“Normally a claimant fails to raise a genuine case of misinterpretation of policy unless he identifies (i) the policy wording said to have been misinterpreted, (ii) the interpretation of that language adopted by the decision-maker and (iii) how that interpretation departs from the correct interpretation of the policy wording in question. A failure by the claimant to address these points… is likely to indicate that the complaint is really concerned with application, rather than misinterpretation, of policy.”
Planning obligations as material considerations

Planning obligations as material considerations

[48]The Community Infrastructure Levy Regulations 2010 ("the CIL Regulations”) at regulation 122 provide a statutory limitation on the use of planning obligations, in the following terms: "122. Limitation on use of planning obligations(1) This regulation applies where a relevant determination is made which results in planning permission being granted for development.(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is— (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.”[49]Planning obligations may only be taken into account as material considerations where the criteria set out in regulation 122 are satisfied, and will only overcome a legitimate planning objection to a development to the extent that those criteria are met: Good Energy Generation Limited v Secretary of State for Communities and Local Government [2018] JPL 1248 at [71]-[72] and [75]. Although the application of the three tests in regulation 122(2) is a matter of judgment for the decision-maker, the interpretation of the language used in paragraph (2) is a matter of law for the court: R (on the application of University Hospitals of Leicester NHS Trust) v Harborough DC [2023] JPL 1171 at [29]. THE PARTIES’ SUBMISSIONS The Claimant’s case Ground 1[50]As background, the claimant drew attention to the requirement (set out in paragraph 4.15.2 of the London Plan) for 3,500 PBSA bed spaces to be provided over the London Plan period, and the reference in the January 2026 London Plan Annual Monitoring Report to an average of just over 4,167 PBSA rooms permitted annually between 2019 and 2023. The claimant also relied on the 2023 Scott House PBSA Demand and Needs Assessment report by Knight Frank, showing a pipeline of 28,150 PBSA rooms in London, with 14,526 bed spaces that “could complete by the end of 2025.”[51]The claimant submits in ground 1 (a) that local plan policy HO7 subjects planning applications for PBSA to much stricter controls than DMLP policy 8. The mischief policy HO7 aims to avoid is speculative development. Discussion of policy HO7 in the officer report was limited because at the time the committee considered the application, the DMLP was the local component of the development plan and what is now the local plan was in draft form only.[52]HO7 requires it to be demonstrated that there is a binding contractual arrangement with a HEP before planning permission is issued.[53]The claimant says that paragraph 7.57 of the local plan shows why Lewisham’s position is special. The paragraph says that the Lewisham Strategic Housing Market Assessment “points to the significant amount of PBSA recently delivered in the Borough”, that “Lewisham is making a significant contribution to meeting London’s needs for PBSA” and that therefore “[a] carefully managed approach to additional capacity is therefore required. Development proposals must clearly demonstrate that the provision will not lead to a harmful overconcentration of PBSA. It is also critical that they do not compromise or suppress the delivery of conventional housing, for which need in Lewisham is greatest.”[54]The claimant says that the committee was never advised of the fact that the grant of permission would breach policy HO7 where the applicant had not provided evidence that a contractual arrangement with a HEP was in place.[55]The claimant submits in ground 1 (b) that the section 106 agreement cannot be seen as “necessary to make the development acceptable in planning terms” as required by regulation 122 of the CIL Regulations, as it does not secure a policy-compliant development. Ground 2[56]The claimant says that the level of support to be provided to Scott House residents in finding suitable alternative accommodation was a matter of particular interest to the committee.[57]The claimant submits that concurrently with finalising the draft obligations and support package under Schedule 8 to the section 106 agreement, the IP circumvented these obligations by evicting the tenants. Indeed, as Schedule 8 did not require a Relocation Strategy to be adopted until more than 4 months after the date of the section 106 agreement, the IP took steps that enabled it to be free of any obligations towards existing tenants before a Relocation Strategy had even been put in place. This not only made the Relocation Strategy redundant, but also it meant that the IP cannot reasonably be described as having taken all reasonable steps to assist the Scott House tenants.[58]Also, the support provided to tenants has not matched that set out in Schedule 8 or promised during the committee meeting and it did not meet the broader requirement of all reasonable endeavours. It did not include any consideration of granting flexible tenancies to residents, and requests for such tenancies were refused.[59]Despite the deficiencies in the IP’s approach being brought to the attention of the council, the application was not referred back to the committee for consideration of the fact that the section 106 agreement would now be unenforceable in respect of several obligations. This gave rise to two legal errors.[60]First, the council issued the permission subject to planning obligations that were unenforceable, which was irrational; see R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at [65].[61]Secondly, the grant of permission was tainted by failure to take account of a material consideration – the fact that the eviction of the Scott House tenants rendered Schedule 8 to the section 106 agreement unenforceable in several respects. This was an “obviously material” consideration to which the council had to have regard and did not. The council and IP Ground 1[62]In relation to ground 1 (a), the council, supported by the IP, says that the assumption that PBSA can only be secured by a nominations agreement is wrong – the lawful use of Scott House as permitted by the permission is for student accommodation and condition 3 requires the development to provide 502 PBSA bedspaces.[63]Further, the development plan does not require an end user to be secured by section 106 or any other type of contractual agreement before permission is granted. The word “secured” in HO7 refers to the nature of the arrangement (i.e. that student use must be secured through an agreement with a HEP) rather than timing. Other than requiring that an agreement should secure PBSA with a HEP, HO7 is silent as to the timing and scope of the agreement. This is for good reason: as recognised in the LPG, there is no benefit to HEPs in entering a nominations agreement when it is not known at what date the HEP will be able to allocate PBSA bedspaces to its students in a development it does not otherwise control.[64]The London Plan is explicit that a nominations agreement need not be entered into until the point of occupation, which is what is required by Schedule 4 to the section 106 agreement.[65]The council was entitled to conclude that the requirement in policy HO7 for evidence to be provided of an end user was met by the letter from Trinity Laban, as referred to in paragraph 172 of the officer report.[66]The council further submits that there was no need to refer the application back to the committee after the local plan was adopted, because the committee’s attention was drawn to the relevant policy requirements – including then draft local plan HO8, which became HO7 – in the officer report.[67]Overall, the council’s case is that the grant of permission complied with policy HO7, and the committee was rightly advised that it did.[68]The council contends that ground 1 (b) fails because it relies on the same alleged error as ground 1 (a), namely the interpretation of policy HO7, and no error was in fact made.[69]In any case, even if the claimant is correct about the construction of policy HO7, it is inevitable that the council would have made the same decision, because as recognised in the LPG it is impractical to require a nominations agreement before permission is granted. I should therefore refuse relief under section 31 (2A) of the Senior Courts Act 1981.[70]In relation to background matters, the council and IP refer to the Knight Frank Demand and Needs Assessment and draw attention to the statement there that only one third of pipeline PBSA schemes are making meaningful progress, which means there is a pressing need for PBSA in London. Ground 2[71]The council, again supported by the IP, contends that ground 2 discloses no error of law.[72]The claimant confuses enforceability with a change in factual circumstances on the ground. The issue of section 21 notices and eviction of the tenants was inevitable. That the IP issued section 21 notices, commenced eviction and instituted the Relocation Strategy secured by the section 106 agreement before the section 106 agreement was signed is not surprising, because the section 106 agreement took 11 months to conclude after the committee had resolved to grant the permission. The steps the IP took were all consistent with the approach secured in the section 106 agreement.[73]Further, the IP was not obliged by the section 106 agreement, the Relocation Strategy or otherwise to grant “flexible tenancies” to Scott House tenants.[74]In any case, ground 2 is academic and I should exercise my discretion to refuse to hear it. The fact is that the Relocation Strategy has been complied with in substance and in full. Also, if the claim were allowed on this ground there would be no relief capable of giving Scott House tenants any real benefit given that the tenants have now been evicted and had the benefit of the Relocation Strategy. Further, there is no public interest in this ground being heard.[75]In any case, I should refuse relief under section 31 (2A) of the Senior Courts Act 1981. The alleged error does not go to the substance of the decision to grant the permission and the council would inevitably have granted the permission nevertheless. DISCUSSION Ground 1[76]Ground 1 turns on a dispute as to the interpretation of policy HO7 b. of the local plan. The claimant contends that the policy requires it to be demonstrated that there is a binding contractual arrangement with a HEP before planning permission is granted. The council and IP say that the policy does not require any type of binding contractual agreement before permission is granted.[77]The starting point is the wording of the policy itself.

(s) ”

[78]I do not think these words, even taken in isolation, require a binding contractual arrangement with a HEP to be in place before planning permission is issued. They do say that proposals will be supported where it is robustly demonstrated that the accommodation will be secured for use by students. It seems to me that the accommodation is secured for use by students because the planning permission is for PBSA and condition 3 requires the development to be implemented “in accordance with the following approved details….[502 PBSA bedspaces]”. If the development were implemented without the provision of 502 PBSA bedspaces, that would be a breach of condition 3 and enforcement action could be taken accordingly. Quite apart from condition 3, if that part of the development which is not intended for employment floorspace were used for any purpose that would be a material change of use from PBSA, the council could take enforcement action in respect of the material change of use.[79]What of the words “as demonstrated by an agreement with one or more specific higher education providers”? I do not think these words require that the agreement shall be in place before permission is granted. The words are not specific as to the time when the agreement must be in place.[80]Furthermore, in my judgment it is plain that the interpretation of policy HO7 b. has to be approached having regard to the context. This context includes the supporting text, particularly paragraph 7.58. It is clear from Cherkley that though supporting text is not itself policy and cannot trump policy, it is relevant to the interpretation of a policy to which it relates. The context also includes the development plan as a whole, the subject matter of the policy and the planning objectives it seeks to achieve and serve.[81]As the claimant says, paragraph 7.58 of the local plan makes clear that the objective is to guard against speculative development. But I do not think paragraph 7.58 helps the claimant to argue that policy HO7 requires a contract with a HEP to be in place before planning permission is granted. It says that the “London Plan makes clear that if the accommodation is not secured for use by students and for occupation by members of one or more specified higher educational institutions”, development is not considered PBSA.[82]It is common ground that London Plan policy H15 does not require a contract with a HEP to be in place before permission is granted. H15 A 2) does not itself specify when the use of the accommodation is secured for students, but paragraph 4.15.3 states clearly that:
“…To demonstrate that there is a need for a new PBSA development and ensure the accommodation will be supporting London’s higher education providers, the student accommodation must either be operated directly by a [HEP] or the development must have an agreement in place from initial occupation with one or more [HEPs], to provide housing for its students, and to commit to having such an agreement for as long as the development is used for student accommodation…”
[83]That makes it plain that the London Plan does not require a contract with a HEP to be in place at the time permission is issued.[84]London Plan policy is itself referred to in paragraph 7.58 of the local plan, without any indication that HO7 adopts a different approach – that contended for by the claimant. In my view, if it had been intended that policy HO7 should adopt a different approach from the London Plan, this would have been stated in paragraph 7.58 or elsewhere in the local plan. This fortifies my view, based on the words of policy HO7 in isolation, that HO7 does not require a contract with a HEP to be in place at the time permission is issued.[85]Furthermore, the third sentence of paragraph 7.58 states that:
“Applications must provide evidence of an end user affiliated with an educational provider.”
[86]That passage does not require that there must be a contract with a HEP in place before permission is granted. I think the third sentence of paragraph 7.58 would have been differently worded if such a contract were so required. In fact, the IP did provide evidence of an end user “affiliated with” an educational provider, in the form of the letter from Trinity Laban.[87]My view is further strengthened by the LPG, which is part of the overall context of policy and guidance for PBSA in London. The LPG states at paragraph3.2.1 that HEPs are unlikely to enter into agreements until plans and “indeed construction” are sufficiently advanced that they can rely on bed spaces being available when needed, but that authorities will want to ensure a “reasonable prospect of compliance with this policy criterion post permission.” Paragraph3.2.2 says that the best way to provide assurance to the decision-maker assessing a planning application is for the developer to demonstrate engagement with one or more HEPs. In this case, that has been done, with the engagement of Trinity Laban.[88]The evidence of David Robinson for the council provides further confirmation that HEPs are reluctant to enter into contracts before planning permission is issued. In particular, Mr Robinson says at paragraphs 11-13:
“11 In practice, a relevant Higher Education Provider (HEP) is typically engaged after planning permission has been granted. At the point of granting permission, the exact identity of the HEP is usually unknown, as this is generally too early in the development process for HEP to commit to a scheme as practical completion of the scheme and students being housed normally comes several years after the date of a planning permission being issued. 12 Developers will normally be able to attain support for a scheme from a HEP at planning application stage as has been the case with Scott House where Trinity Laban wrote in support of the development… but in our experience this is as far as the matter can be progressed until planning permission has been issued…. 13 A nominations agreement is usually entered into well after planning permission is granted and closer to the point of occupation, once the HEP is confirmed and the accommodation is nearing readiness for use. This timing ensures that the agreement reflects the actual accommodation and meets the requirements of the HEP responsible for allocating students.”
[89]This evidence was confirmed by the evidence of Mr Robinson and of Ms Phoebe Juggins for the IP about the practice in Lewisham and other London Boroughs.[90]The claimant responds by contending that his interpretation does not lead to the impractical and problematic consequences claimed by the council and IP. The claimant says there is no requirement that all contractual terms must be in place when the committee resolves to grant permission, just that they must have been settled by the time permission is actually granted. At that stage, there will be sufficient commercial certainty for developers and potential occupiers. Further, any other potential contingencies could also be dealt with by appropriate contractual terms. A nominations agreement could be sensibly drafted so as to take effect on the issuing of planning permission and/or meeting other conditions precedent or milestones.[91]However, the claimant did not dispute the statement in paragraph 3.2.1 of the LPG that HEPs are unlikely to enter into agreements until “plans and, indeed, construction are sufficiently advanced….”, and he produced no evidence of any PBSA developments where a binding contract with a HEP was entered into before permission was granted.[92]I have taken account of paragraph 4.57 of the local plan, but this paragraph does not change my conclusions above. I heard no evidence as to other London Boroughs’ contribution to PBSA, but it is well known “conventional” housing need is a pressing issue throughout London.[93]Overall, in my judgment ground 1 is not made out. The council did not err in granting planning permission subject to the conditions which were imposed and the section 106 agreement, in particular Schedule 4, which was negotiated and entered into.[94]In those circumstances I do not need to go on to consider the application of section 31 (2A) of the Senior Courts Act. However, I will do so, for if I am wrong in my conclusion on ground 1. In my view it is highly likely that the outcome for the claimant would not have been substantially different had the council adopted the claimant’s interpretation of policy HO7. This is because on the evidence, it is simply impractical to expect HEPs to enter into a binding contract – in any form – until after permission has been granted. If HO7 meant what the claimant says it means, permissions for PBSA would be unlikely to be granted. In those circumstances, in my view it is highly likely that the council would have granted the permission to the IP despite the lack of a binding contract with a HEP.[95]Ground 1 fails, therefore. Ground 2[96]The claimant’s case is that: i) By evicting the tenants before the Relocation Strategy was approved by the council, the IP circumvented the obligations relating to the Relocation Strategy which were being discussed with the council in the negotiations about the section 106 agreement. This made the requirement to produce a Relocation Strategy redundant and means the IP did not use all reasonable endeavours to assist the tenants. ii) Further, the support provided to the tenants has not matched the requirements of schedule 8 to the section 106 agreement or what was promised during the committee meeting, as it did not include any consideration of granting flexible tenancies to residents. iii) The above points mean that the council granted the permission irrationally, as it granted the permission subject to planning obligations that were unenforceable. Also, the fact that schedule 8 was unenforceable was a material consideration which the council was obliged to take into account but did not do so.[97]Save Scott House commented on the provisions of the draft section 106 agreement by letter of 28 August 2025, in which it objected (amongst other things) to schedule 8, saying it would fail to provide meaningful protection to the tenants.[98]The council responded by letter of 13 October 2025 in the terms set out earlier in this judgment. Counsel for the IP told me that the letter from the IP set out in the council’s letter essentially constituted the Relocation Strategy that was submitted to the council, and that was not contradicted at the hearing.[99]By the time the section 106 agreement had been finalised and the permission issued, all the tenants except Mx Khevyn Ibrahim (referred to below) had left Scott House.[100]The claimant does not contend that schedule 8 to the section 106 agreement as completed is unlawful or that it was unlawful for the council to approve the Relocation Strategy.[101]Nor does the claimant contend that the council considered all reasonable endeavours had not been used to assist the tenants. Indeed, in the council’s letter to Save Scott House of 13 October 2025 it is stated that the “Developers have engaged with the tenants in accordance with the requirements of the ‘draft’ Schedule 8.” It was suggested for the claimant that the council should have had the chance to make suggestions about the Relocation Strategy before the tenants had gone. However, I am not aware of any evidence that the council at any time thought the Relocation Strategy was lacking in any material respect. Indeed, the council approved the Relocation Strategy.[102]At the root of the claimant’s complaint is that by the time the permission was issued most of the tenants had been evicted, so the Relocation Strategy was ineffective by then. In essence, it is said that the IP pre-emptively instituted the Relocation Strategy.[103]I do not think the fact that most of the tenants had been evicted by the time the permission was issued made the grant of permission unlawful. It was inevitable that the tenants would be evicted if permission were granted. Schedule 8 does not place any limit on when tenants may be served with section 21 notices. Also, it does not prevent the IP from assisting with relocation prior to completion of the section 106 agreement. Further, schedule 8 does not prevent the Relocation Strategy being proceeded with before its approval by the council. The only provision in schedule 8 as to time is that the Relocation Strategy shall be submitted to the council not more than four months after the date of the section 106 agreement.[104]It could not be said that it was irrational (or a culpable failure to take account of a material consideration) for the council to grant permission where all it considered should be done to assist the tenants had been done, merely because those endeavours had been undertaken by the IP (and the tenants evicted) before the permission was granted. After all, as the council’s letter of 13 October 2025 stated, it took longer than expected to finalise the section 106 agreement – nearly a year. In those circumstances it is hardly surprising that the IP acted when it did.[105]For these reasons, the fact that the assistance which the council and the IP thought tenants should be given was provided before the permission was granted does not of itself mean that all reasonable endeavours have not been used to help the tenants.[106]In any case, I do not think the fact that by the time the permission was granted most tenants had been evicted meant that schedule 8 was thereby “unenforceable” as claimed by the claimant. Although by the time permission was granted most tenants had left Scott House, schedule 8 was enforceable in respect of any tenants remaining. One tenant, Mx Khevyn Ibrahim, was still in occupation then. Their witness statement is dated 26 November 2025 and they were then still occupying their flat in Scott House. It follows that the requirements of schedule 8 were still enforceable in respect of Mx Ibrahim at least. Furthermore, Mx Ibrahim said in their statement that at least one former tenant of Scott House was “sofa surfing” and effectively homeless. The Relocation Strategy would require the IP to continue to assist any former tenant in that position, for example with details of available or soon to be available properties.[107]In any event, in my view, the claimant confused enforceability with a change in the factual circumstances on the ground. The fact that the requirements of schedule 8 had already been discharged for most of the tenants did not make schedule 8 unenforceable as a matter of principle.[108]The only specific way in which the claimant suggested that the support provided to tenants did not match that in Schedule 8 to the section 106 agreement or fell short of all reasonable endeavours was that the IP did not grant “flexible tenancies/rents”.[109]This was a reference to paragraph 1.2 of Schedule 8 to the section 106 agreement, where the IP covenants that the Relocation Strategy shall include “Details of flexible tenancies/rents to facilitate any delays re commencement of development”. The phrase “Details of flexible tenancies/rents to facilitate any delays re commencement of development” is not defined.[110]Ms Phoebe Juggins explains in her second witness statement for the IP the alternative accommodation process:
“8. The majority of tenants (12 out of 18 occupied properties) departed the Site in accordance with the terms of the Section 21 notices (i.e. in fact in advance of the date required by the section 21 notice). Where tenants engaged with our property management team requesting additional time owing to the timings of their onward moves, our property management team confirmed that the terms of the Section 21 notice would not be enforced until such agreed date. 9. In practice, whilst this flexibility was not required to be guaranteed by us in every case, tenants were allowed to remain at the Site until the subsequent agreed date without enforcement of the Section 21 notices. This effectively amounted to flexibility of departure date as tenants who left the Site prior to the notice expiry were permitted to ‘pro-rata’ their rent, and tenants who remained on Site beyond the expiry were able to agree a reasonable subsequent departure date and avoid legal proceedings. 10. All tenants have since vacated the Site without any enforcement of the Section 21 notices being required, and in six cases, tenants remained at the Site beyond the expiry of these notices without legal action being taken upon them and engaged in continued engagement with our property management team.”
[111]The claimant did not contradict the statements by Ms Juggins set out above. In my judgment the approach described by Ms Juggins fell within the words “Details of flexible tenancies/rents to facilitate any delays re commencement of development”. The IP showed flexibility as to the date on which the tenants left Scott House and also flexibility as to rent, as tenants who left the site before the expiry of the section 21 notice were permitted to pro-rata their rent. There was nothing in paragraph 1.2 of schedule 8 that required tenants to be allowed to stay for any particular length of time, still less indefinitely.[112]In those circumstances I cannot see how it was irrational for the council to grant permission, especially because there has been no suggestion that the council at any time required or would have required any assistance to be given to the tenants beyond the assistance they were in fact given.[113]Overall, in my judgment ground 2 is not made out. The council did not irrationally grant the permission subject to planning obligations that were unenforceable. By the time the permission was granted, the relevant planning obligations had already been largely carried out, and most (but not all) tenants had left. But that did not mean that the IP had not used all reasonable endeavours to assist the tenants, or that the grant of permission was irrational, or that in granting the permission the council failed to take account of an obligatory material consideration.[114]Given that ground 2 is not made out, I do not need to go on to consider whether it is in any case academic and whether in any case I should refuse to quash the permission under section 31 (2A) of the Senior Courts Act. However, in case I am wrong in my conclusions above on ground 2, I do consider section 31 (2A). For this purpose, I assume the council wrongly failed to take account of the fact that by the time the permission was granted all save one of the tenants had been evicted, and that therefore such assistance as could be given to the tenants had largely been given to them by the time the permission was granted. Had the council taken account of these matters it was highly likely that the outcome for the claimant would have been the same, because it was highly likely that permission would still have been granted. There was no suggestion – from the claimant, the council, or anyone else – that the council has ever raised any objection to the nature of the assistance given by the IP to the tenants of Scott House, or to the time at which that assistance was given. The council’s approval of the Relocation Strategy reinforces the conclusion that the council had no objection.[115]I add for completeness that I do not accept the submission of the council and IP that ground 2 is academic because the tenants have now left Scott House. As was submitted for the claimant, the issue in this case is whether the grant of permission was lawful, and the claimant’s submissions are relevant to that issue, even though I have decided that they must be rejected. CONCLUSION[116]For the reasons I have set out, both grounds of challenge fail. Accordingly, this application for judicial review must be dismissed.