Code Students (Nottingham) Limited, R (on the application of) v Nottingham City Council [2026] EWHC 2110 (Admin)

[2026] EWHC 2110 (Admin)Case No AC-2026-BHM-000103
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/08/2026
Before
Mrs Justice O'Farrell DBE
THE KINGon the application of
Between
CODE STUDENTS (NOTTINGHAM) LIMITEDClaimantNOTTINGHAM CITY COUNCILDefendantVITA DORMANTCO 1 LIMITEDInterested PartyTORSION (GUILDHALL) PROPCO LIMITEDInterested Party
Paul G Tucker KC and John Barrett (instructed by Freeths) for ClaimantIsabella Tafur KC and Daisy Noble (instructed by Pinsent Masons) for DefendantRichard Harwood KC (instructed by Shoosmiths) for Second Interested PartyHearing Hearing date: 28 th July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 7 th August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is a renewed application by the Claimant for permission to apply for judicial review, challenging the decision by the Defendant dated 29 January 2026 to grant planning permission for the development of student accommodation at the former police station and fire brigade stores, South Sherwood Street, Nottingham (“the Guildhall Site”).[2]The application was considered by Steyn J on the papers. By Order dated 8 May 2026, sealed on 14 May 2026, Steyn J refused the application for permission to apply for judicial review for the reasons set out in the Order.[3]The applicable test is that permission will only be granted where the court is satisfied that the papers disclose an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence: (CPR 54.4; para.54.4.2). The threshold bar is low; the court must be satisfied that there is an arguable ground of review which has a realistic prospect of success and where there is no discretionary bar to a remedy such as delay or an alternative remedy: Sharma v Brown-Antoine [2006] UKPC 57; Ramdass v Minister of Finance [2025] UKPC 4 at [5].

Background

[4]On 5 December 2023 the Claimant made an application for permission to develop two blocks of purpose-built student accommodation with ancillary amenities and infrastructure including ground floor commercial units, together with associated landscaping on a site at 51 Glasshouse Street and 1, Cairns Street, Nottingham, a city centre site (“the Code Scheme”).[5]On 17 September 2025 the officer’s report in respect of the Code Scheme was submitted to the Defendant’s planning committee meeting, with a recommendation to refuse permission.[6]On 5 December 2025, the Defendant refused permission for the Code Scheme. The Claimant has appealed that decision to the Secretary of State for Housing, Communities and Local Government and a hearing is fixed for 2027.[7]On 28 August 2025 Vita Nottingham Guildhall Limited made an application for development of a site (“the Guildhall Scheme”), comprising the conversion of and extension to the Grade II listed former Police and Fire Stations building for student accommodation and erection of a new 18 storey building for purpose-built student accommodation, including ancillary residents hub, landscaping and other associated works. The Guildhall Scheme included demolition of the existing building adjoining the Former Police and Fire Station built in 1930, part of the rear wing of the Fire Station House built in 1880 and partial demolition of the rear east wing to the Guildhall.[8]On 9 December 2025 the officer’s report, recommending the grant of permission in respect of the Guildhall development, was published.[9]On 17 December 2025, the Defendant’s planning committee considered the application together with the officer’s report. The committee resolved to grant permission subject to securing a section 106 agreement.[10]By letter dated 14 January 2026 Mr May, solicitor acting for the Claimant, notified the Defendant that the Claimant intended to submit a planning appeal, in which it would request the inquiry procedure, in respect of the rejected Code Scheme application. The letter complained specifically of:(i) a lack of detail and precision in the reasons for refusal of the Code Scheme application; and(ii) inconsistency between the Defendant’s reasons for refusal and its reasoning in approving the Guildhall Scheme application. In that context, the letter raised a request for additional information regarding the Guildhall application, stating:
“Whilst this letter is primarily concerned with clarifying the issues between the Council and Code for the purpose of the pending appeal, the nature of the inconsistency in the Council’s approach to [the Guildhall application] are sufficiently stark that our client has requested us to consider whether there are grounds to consider making an application for judicial review as and when that decision is issued. This letter is accordingly written in the hope that the Council will immediately review its position in the light of that inconsistency and seek to revise the basis upon which it may invite dismissal of Code’s prospective appeal, thereby rending any such judicial review unnecessary … Whilst plainly the design of each scheme are matters for the specific site, it is impossible to understand the comments made by the Council’s urban design and/or conservation officers and by other statutory consultees as those comments/responses appear not to have been made available … This is a clear and egregious breach of s.100D of the LGA (and would leave any permission granted under [the Guildhall Scheme] vulnerable to Judicial Review). Please could these comments/responses be either uploaded to the Council’s Planning Portal or sent directly to me immediately?”
[11]On 21 January 2026 the matter was referred back to the planning committee as a section 106 agreement could not be secured with the Defendant as owner. The committee again resolved to grant the application with a requirement that a section 106 agreement should be secured from any future owner of the land.[12]On 29 January 2026 the Decision was issued, granting planning permission in respect of the Guildhall Scheme.

Proceedings

[13]On 11 March 2026 the Claim for Judicial Review was filed by the Claimant (issued on 13 March 2026).[14]The Claimant’s case is that the Guildhall Scheme planning permission was unlawful, its grounds of challenge are arguable and permission to challenge the grant of planning permission should be granted.[15]The Decision is challenged on the following grounds: i) Ground 1 - the Defendant failed to publish background documents pursuant to its statutory obligation under s.100D of the Local Government Act 1972 and contrary to its own Statement of Community Involvement dated 20 June 2003; ii) Ground 2 - there are multiple inconsistencies between the refusal decision in relation to the Code Scheme application and the granted application in relation to the Guildhall Scheme, notwithstanding the issues being raised in them being substantially similar. At the very least the Defendant was required to give reasons for the different treatment, which it failed to do. iii) Ground 3 – the Defendant failed to have due regard to the duty to preserve the Grade II listed building and its setting. In so far as it is considered at all it is considered inadequately and conditions applied which are apparently intended to preserve elements of the building do not achieve that purpose. iv) Ground 4 – the Defendant failed to have regard to material matters namely:(i) overshadowing of the external amenity area;(ii) impact of the development on traffic sensitive streets; and(iii) whether the development impacts possible planned future development nearby. v) Ground 5 – the Defendant has taken into account a standard landscaping condition as meeting the need for a condition to alleviate the wind impacts of the development which in reality it does not achieve.[16]On 1 April 2026 Torsion, an Interested Party, filed an Acknowledgement of Service.[17]On 2 April 2026 the Defendant filed an Acknowledgement of Service.[18]The Defendant’s position, supported by Torsion, is that the thrust of the grounds of challenge is that the Defendant’s decision to refuse permission for the Code Scheme was inconsistent with its decision to grant permission for the Guildhall Scheme. Almost all of the grounds of challenge rely on a comparison between the Defendant’s approach to the Guildhall Scheme and its approach to the Code Scheme: i) The prejudice said to arise under Ground 1 from the Defendant’s failure to publish background documents is that it deprived the Claimant of the opportunity to point out the alleged inconsistencies between the Defendant’s approach to the two schemes; ii) Ground 2 is a direct challenge to the Defendant’s allegedly inconsistent treatment of a number of discrete issues arising under each application; iii) Ground 4 is a direct product of the matters that the Claimant alleges were considered in the context of the Code Scheme, but overlooked in respect of the Guildhall Scheme; and iv) Ground 5 arises from the Defendant’s alleged inconsistency in assessing the acceptability of wind conditions in respect of the two schemes.[19]It is said by the Defendant that each of these grounds proceeds on an assumption by the Claimant that the Guildhall and Code Schemes are sufficiently alike so as to engage the principle of consistency in decision-making. That assumption is said to be wrong; the schemes are distinguishable in a number of material respects and the circumstances that pertain to each of them give rise to materially different considerations.[20]On 7 April 2026 VDL (the other Interested Party) indicated that it did not intend to make any representations.

Ground 1 – background documents

[21]Section 100D(1) of the Local Government Act 1972 requires that background papers to an officer’s report for a meeting of a council are to be listed in the report and made available for inspection.[22]“Background papers” are defined in section 100D(5) as those documents relating to the subject matter of the report which: (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report.[23]It is common ground that the Defendant failed to list or make various documents referred to in the Officer’s Report available for inspection prior to the planning meeting, namely: i) the assessment report that set out a justification for the studio accommodation based on the specific constraints of the Listed Building, which indicated that cluster units could not be accommodated without greater heritage harm or loss of viability; ii) the comments of the Defendant’s Conservation Officer, the Civic Society, Historic England, the Council’s Environmental Health Team, the Council’s Highways Team and Active Travel England.[24]The Defendant has acknowledged that it did not publish the assessment report or the comments of various consultees, until after the decision to grant planning permission. It is agreed that those documents were background documents within the meaning of s.100D(5) but the Defendant’s position is that the Claimant did not suffer prejudice as a result of such non-compliance.[25]Mr Tucker KC, leading counsel for the Claimant, submits that the underlying purpose of the legislation is to enable engagement by stakeholders and consultees with the decision-making process before any decision is made. Any decision by the Claimant to object to the application should be informed by access to the background documents that were requested by the Claimant’s solicitors before the grant of planning permission on 29 January 2026.[26]Despite the solicitor’s request for the comments to be provided by letter dated 14 January 2026, the planning meeting went ahead on 21 January 2026 and the decision was issued on 29 January 2026. It was only after granting planning permission that it published the requested background papers on its website on 18 February 2026. The Defendant has failed to give any explanation for its failure to comply with the statutory obligation.[27]The Claimant submits that it was not in a position to make an informed judgement as to the rationale of the Defendant in determining the application. By withholding key background documents, the Defendant effectively excluded the Claimant from engaging in the decision-making process by reference to documents that were in its possession.[28]The Claimant’s Statement of Facts and Grounds pleads that, if the information had been provided prior to the planning meeting and the Decision, the Claimant would have raised matters that identified inconsistencies between the approach being advised by officers in respect of the Guildhall development application and the approach taken in respect of the Code development application, including: i) an inconsistency of approach when compared with the approach taken in respect of the Code Scheme; ii) failure to have regard to the impacts on the traffic sensitive streets; iii) the student accommodation needs addendum submitted by Vita in October 2025 (but not made available) and its consistency with Code’s assessment of need; iv) failure to consult the Council’s Planning Policy & Research Officer regarding the type of accommodation; v) lack of cycle parking provision; vi) heritage impacts; vii) ability to secure noise and ventilation mitigation by planning condition in relation to a listed building.[29]Thus, the Claimant’s case is that the Defendant’s failure to publish background documents deprived the Claimant of the opportunity to point out the alleged inconsistencies between the Defendant’s approach to the two schemes.[30]Ms Tafur KC, leading counsel for the Defendant, accepts that the background documents were not published. She submits, however, that the Claimant was not prejudiced by this as it did not request the documents when it first became aware of them, or make any objection to the application for the Guildhall Scheme to the Defendant. Not every failure to publish documents will render a decision of a planning authority unlawful. The legal consequences of failing to publish background documents, whether in breach of a statutory requirement or Statement of Community Involvement, will be fact specific having regard to the presence (or absence) of material prejudice suffered by the Claimant.[31]The Defendant denies that the failure to publish those documents gave rise to an error of law as it did not result in substantial prejudice to the Claimant: i) The Guildhall application was submitted on 28 August 2025. It was publicised, subject to consultation and reported to committee with a recommendation to approve on 17 December 2025. The Claimant did not object to the application. ii) The officer’s report in respect of the Guildhall application was published on 9 December 2025. Although the report referred to the background documents the subject of this challenge, the Claimant did not ask to see any of those documents, or submit any representations, before consideration of the application by the planning committee on 17 December 2025. iii) The Claimant did not object to the Guildhall application even after the officer’s report was published. iv) The letter dated 14 January 2026, asking for the background documents 2026, was in the context Claimant’s notification regarding its appeal against the Code development refusal and not for the purpose of facilitating participation in the Guildhall application.[32]The Defendant submits that in circumstances where the Claimant did not ask for the background documents, even after their existence became apparent through publication of the officer report, the court should be slow to find that it has suffered prejudice through their non-publication. Even when the documents were requested on 14 January 2026, that was to inform the Claimant’s approach to its appeal against the Code Scheme rather than to facilitate active participation in the Guildhall Scheme.[33]In any event, it is said that permission should be refused as the Decision is not likely to have been significantly different had the papers been published.[34]The material questions before the court on Ground 1 are whether there is an arguable case that:(a) there was prejudice to the Claimant; and/or(b) the outcome would likely have been different had the documents been produced earlier.[35]The requirement for prejudice was considered by Holgate J (as he then was) in R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC [2023] EWHC 1995 (Admin):
“[142] On a true construction of the 1972 Act, I do not think that the effect of a failure to comply with s.100D(1)(a) and/or (b) in relation to an officer’s report to a Council or committee renders the subsequent decision taken by that body automatically unlawful or invalid, and therefore liable to be quashed. Instead the legal effect of such a breach will depend upon the circumstances of the case. Cases are likely to fall within a spectrum including failure to comply with the statutory requirements timeously, failure to identify the existence of a background paper and failure or even refusal to make a background paper available at all.”
[36]Even where some prejudice could be established, Section 31(2A) of the Senior Courts Act 1981 provides that the court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred, unless, as set out in section 31(2B), the court considers that it is appropriate to grant relief for reasons of exceptional public interest.[37]Section 31(3C) of the Senior Courts Act 1981 provides that, when considering whether to grant leave to make an application for judicial review, the High Court(a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and(b) must consider that question if the defendant asks it to do so. Sub-section (3D) provides that if, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. Sub-section (3E) provides that the court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest.[38]In Worcestershire (above), the applicable test was clarified as that set out above:
“[149] I turn to consider s.31(3C) to (3E). The court in Joicey, having decided that the claimant had been prejudiced by the breach of s.100D, went on to apply the test in Simplex (GE) Holdings Limited v Secretary of State for the Environment [2017] PTSR 1041, that is whether the defendant’s decision would inevitably have been the same if there had been no breach of s.100D. However, in 2015 the Simplex test was replaced in proceedings for judicial review by the test in s.31(2C) and (2D) for the permission stage. The question is whether it is highly likely that the outcome for the applicant would not have been substantially different if the defendants had complied with s.100D. ”
[39]In this case, the officer’s report, containing summaries of the assessment report and comments, was published on 9 December 2025, shortly after the refusal of permission in respect of the Code Scheme. It is clear that the Claimant’s solicitor did not ask for any documents or the comments until after the planning committee indication that the Guildhall development application would be granted. The Statement of Facts and Grounds indicates that the objective in seeking the documents was not to raise substantive objections to the Guildhall application but to identify inconsistencies in the Defendant’s approach to the Code and Guildhall applications, to further the Claimant’s planning appeal.[40]Based on the materials before the court, it is not reasonably arguable that any prejudice was suffered by the Claimant. Further, it was highly likely that the outcome for the Claimant would not have been substantially different if the papers had been published.[41]As identified by Ms Tafur by reference to the text of the officer’s report, the matters that the Claimant now says would have been raised by way of representations were matters already addressed in the officer’s report. i) The report summarised the key reasons that the Guildhall Scheme provided for studios in the refurbished listed buildings and cluster or hybrid units in the proposed new tower block, together with reasons for accepting that proposal complied with the relevant policies, at paragraphs 7.1 to 7.14. ii) The report explained at paragraph 7.67 that the applicant’s viability appraisal had been independently reviewed and verified by the Defendant’s appointed assessor. iii) Although comments from various sources were not set out verbatim in the report, they were summarised in the relevant parts of section 7 of the report.[42]Thus, to the extent that there were any perceived inconsistencies between the approach adopted to the Code Scheme and the approach adopted to the Guildhall Scheme, that would have been apparent from a comparison between the respective officer’s reports. It follows that the potential representations now relied on by the Claimant could have been raised before the planning committee meeting on 17 December 2025. On that basis, the Claimant would not have had any valid ground for challenging the procedural fairness of the planning process by reference to the late release of the background documents.[43]On the facts of this case disclosed in the documents before the court, it is not reasonably arguable that, if the background documents had been available to the Claimant prior to the planning meeting on 21 January 2026 or the Decision, the Claimant would have made any representations in respect of the merits of the Guildhall development application. The evidence in the contemporaneous documents shows that any representations would have been limited to the issues now identified, which seek to establish an inconsistency in approach to the Guildhall application and the Code application.[44]In the absence of any challenge to the merits of the Guildhall Scheme, it is highly unlikely that the outcome of the application would have been substantially different.[45]For those reasons, I refuse permission in respect of Ground 1.

Ground 2 – inconsistent approach

[46]The Claimant’s case is that the Defendant was inconsistent in its decision-making in respect of the Code Scheme and Guildhall Scheme applications.[47]The material legal principles in relation to this ground are set out in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137. In that case, dismissing the appeal against the first instance judgment quashing the inspector’s decision, it was held that the inspector’s determination of the appeal against the refusal of planning permission necessarily required a decision as to whether the site was within a specific physical boundary. That was a critical aspect of the decision in an earlier appeal which related to an identical proposal on the same, albeit larger, site. The earlier decision was therefore a material consideration. The inspector’s decision did not indicate that he had taken the previous decision into account nor did the inspector explain why he had departed from that earlier decision.[48]Mann LJ stated at pp.145-146:
“In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that: there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision. To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate. … an inspector is under no obligation to manifest his disagreement with other decisions which are distinguishable. That indeed would be a gratuitous and pointless exercise.”
[49]Mr Tucker submits that the Code Scheme and the Guildhall Scheme both concern the development of tall buildings to provide student accommodation. There is physical proximity of the sites. They engage similar issues regarding impact on heritage assets, impact on townscape, amenity, noise effects, servicing, wind impact on pedestrians and mode of student accommodation.[50]Mr Tucker contends that the material inconsistencies relied upon by the Claimant are not confined to site specific matters but go to the underlying difference in approach to the two applications, in respect of which no reasons have been given by the Defendant.[51]Ms Tafur’s response is that the decisions taken relate to substantially different proposed developments; the only similarity is that the two applications relate to purpose-built student accommodation in Nottingham City Centre. In most other respects the proposals are different and raise different planning issues.[52]There were a number of significant features of the Code Scheme that required careful scrutiny. If approved, it would have been the tallest building in Nottingham. The proposal was for a total of 1,252 studios which would have made it the largest single purpose-built student accommodation scheme in Nottingham. The proposed accommodation would be provided in two new towers of 22-storeys and 29/30-storeys (including plinths), separated by a distance of 11.5m. All of the units were proposed as studios (i.e. where all amenities are provided within the room for the sole use of the occupier) with no cluster flats (which usually have a shared kitchen/living/dining room).[53]There were a number of objections to the Code Scheme, including from the University of Nottingham, Nottingham Trent University and their respective students unions. Their objections included concerns regarding the high proportion of studios as compared to cluster style/apartment rooms.[54]In contrast, the Guildhall Scheme proposed the restoration and refurbishment of the Grade II Police and Fire Stations, which had been vacant since 2016 and subject to water damage. In order to fund the restoration and refurbishment of the listed buildings, the Scheme also proposed the erection of a single tall building of 18-storeys. The Guildhall Scheme proposed a total of 610 units of student accommodation, comprising 246 studios, 248 cluster beds and 60 units that could be laid out as studios or cluster beds.[55]There was a single objection to the Guildhall development, from a local business, no objection from the Claimant, and broad support from other stakeholders.[56]On consideration of this renewed application for permission, I am acutely aware that it is not for this court to decide any disputed issues but only to determine whether there is an arguable case for judicial review on Ground 2. I therefore turn to the matters relied on by the Claimant in its Statement of Facts and Grounds.[57]The first matter concerns the issue of sunlight. One of the reasons for refusal of the Code Scheme application was a concern that shadow caused by the tall Southern tower would affect the amount of sunlight on external amenity areas; in particular, the terrace would be in shadow for much of the day. The complaint is that, in contrast, there was no assessment of sunlight in the Guildhall Scheme application and none required by the Defendant. There is no explanation as to why it was a significant factor in the Code scheme but not relevant, or assessed, in respect of the Guildhall Scheme.[58]As set out in the officer’s report for the Code Scheme, the focus of the sunlight issue was on the southern tower because its height and orientation to the amenity terrace indicated that it would be in shadow for the majority of the day. The fact that this was not considered to be an issue in respect of the northern tower showed that this factor arose, not in relation to the Code Scheme as a whole but in relation to a specific feature of the scheme. The single, lower tower and a different configuration of the Guildhall Scheme, like the northern tower of the Code Scheme, did not bring into play any perceived concern as to sunlight and therefore did not necessitate detailed consideration in the report.[59]Second, another reason for refusal of the Code Scheme application was the wind environment impact on the terrace, whereas it was accepted that wind mitigation could be satisfied for the Guildhall Scheme by condition 21, approval of the landscaping scheme.[60]The wind assessment for the Code Scheme demonstrated that the massing of the towers would increase wind speeds along nearby footways which, coupled with the harsh public realm, would result in unwelcoming conditions for pedestrians. Wind conditions on the terrace meant that even in the summer, it would only be suitable for standing and not sitting. The obvious distinction between the schemes is that the proposal for two tall towers raised a potential wind impact concern that did not arise on the Guildhall Scheme, which proposed a single tower. The wind and microclimate assessment in respect of the Guildhall Scheme found there would be no potential for wind safety or distress risks and that wind conditions would be suitable for their intended use.[61]The third matter is that the officer’s report recommended refusal of permission in respect of the Code Scheme based on noise level concerns, whereas, it was accepted that a condition requiring a noise assessment to be submitted would be adequate in respect of the Guildhall Scheme.[62]The officer’s report in respect of the Code Scheme referred to a concern that street noise levels would preclude occupiers keeping their windows open at night, which was the main source of ventilation to the units. Further, the Noise Assessment indicated that daytime noise levels on the terrace would exceed acceptable levels for external amenity space. In contrast, the Guildhall Scheme was of a significantly smaller scale and lower prominence such that noise was assessed not to be an insuperable obstacle. It was accepted by the officer that the Noise Impact Assessment submitted in respect of the Guildhall application demonstrated that mitigation measures such as high performance glazing and mechanical ventilation could achieve acceptable internal noise levels. It was recognised that one objection had been received about potential noise restrictions on its business as a nightclub. That was met by the recommendation that a condition should be imposed for a detailed noise assessment, including monitoring of the south-east facing elevation.[63]I note that the officer’s report for the Code Scheme considered the cumulative impact on amenity caused by the sunlight, wind and noise issues, stating:
“Given the position of the amenity terrace in relation to the southern tower and the potential for overshadowing, combined with the windy conditions and noise, it has not been demonstrated that the outdoor amenity terrace would provide a suitable level of amenity for occupiers.”
[64]On a fair reading of the officer’s reports in respect of each proposal, it is evident that the Code Scheme had distinct features, that justified consideration of the impact of sunlight, wind and noise on occupier amenity but which simply did not arise in respect of the Guildhall Scheme.[65]The fourth matter relied on is that a reason for refusal of the Code Scheme was the detrimental impact on the efficient and safe operation of the highway network, including inadequacy of service bays on a traffic sensitive street. In contrast, it is said that the Defendant did not even consider the relevance of traffic sensitive streets in granting permission in respect of the Guildhall Scheme.[66]The difference in treatment is explicable by reference to the difference in the proposed scope and design of the respective developments. The Code Scheme proposed a single service bay to cater for the delivery, serving and drop-off/collection of 1,252 students and three commercial units. Concerns were raised about this arrangement from the highway authority and the asset managers of the Victoria Centre, given the conditions on the relevant roads around the Code Site and the size of the development, as discussed in detail in the officer’s report. In comparison, the servicing requirements for the Guildhall Scheme were materially reduced, given the smaller scope of the development, different roads were affected and, significantly, it did not elicit any objections from the highway authority.[67]The fifth matter relied on is that the Code Scheme application was refused based on inadequate evidence of the need for purpose-built student accommodation of the design and type proposed, whereas the Guildhall Scheme application was granted, without adequate explanation. The Claimant argues that there was no suggestion or articulation of a preference for any particular type of student accommodation capable of evidencing a rational preference in land use terms for a particular type of student accommodation.[68]The Code Scheme and the Guildhall Scheme proposed different mixes of accommodation. The Code Scheme involved 100% of the accommodation proposed as 1,252 studio units, based on an assumption that students were concerned only with affordability and quality, rather than mode of accommodation. That approach was not accepted as sufficiently justified by the officer in the report. Leaving aside any student preference for studio or cluster type of accommodation, the officer identified evidence that studio accommodation was generally more expensive than cluster accommodation. Whilst the Guildhall Scheme offered a higher proportion of studios than would generally be preferred by the Defendant and the universities, this was justified by the constraints posed by the re-use of the historic building and it was balanced by the incorporation of cluster accommodation into the design.[69]Sixth, complaint is made that the Defendant insisted that the scale of the Code Scheme necessitated a design review but did not apply the same requirement in respect of the Guildhall Scheme. But this is explicable by the material difference in size and scope of the two schemes.[70]Seventh, complaint is made that the Code Scheme was refused for a failure to demonstrate how it would avoid prejudicing future development of the remainder of Site Reference 52 (“SR52”), whereas no such consideration was applied to Site Reference 53 (“SR53”).[71]The officer’s report for the Code Scheme stated that, despite the site’s allocation as commercial and retail development in the Local Plan (SR52), it was considered that the principle of purpose-built student accommodation on the site would be acceptable. However, it was considered that the poor-quality building design and public amenity would reinforce the car-centric focus of the area, rather than enhancing east-west connections, as envisaged as part of the allocation. Given that the site comprised a relatively small but critically located part of the site allocation, it was considered that the proposal would be disproportionately prejudicial to delivering a development across the entire site that would meet the development principles of SR52.[72]In contrast, the Guildhall Scheme comprised approximately 75% of allocation SR53. This meant that only a small proportion of the site allocation would be left for future development. That remaining part of SR53 was already constrained by the presence of an existing listed building which meant that the layout that any future development on the remaining 25% of the allocation was not subject to the same uncertainty. Thus, the potential for future development on the allocated sites, and the impact of each development on that potential, was materially different in each case.[73]As is recognised by the parties, the Defendant was entitled to treat differently applications for different developments that raised different considerations. In this case, there were obvious material distinctions, including that they concerned different sites, the Guildhall Scheme comprised in part the change of use of existing buildings, the Code Scheme was much larger in height, volume and number of units than the Guildhall Scheme, the mix of accommodation (studio, cluster or hybrid) was markedly different and the Code Scheme attracted a greater number of objections.[74]Given those substantial differences, in the absence of specific inconsistencies relating to identical circumstances, it is not reasonably arguable that the Defendant adopted an approach that was inconsistent in its decision-making in respect of the Code Scheme and Guildhall Scheme applications.

Ground 3

[75]Ground 3 is the alleged failure to apply the statutory requirements of the Planning Listed Buildings and Conservation Areas Act 1990 (“the 1990 Act”).[76]Section 66 of the 1990 Act requires that in considering whether to grant planning permission for development which affects a listed building or its setting, the planning authority shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.[77]It is common ground that failure to take into account a material consideration, identified expressly or impliedly by statute as a consideration to which regard must be had, or one which is obviously material, may render a decision unlawful as a matter of public law: (R (Friends of the Earth) v. Heathrow Airport Ltd [2020] UKSC 52 at [116 – 121].[78]There is a strong statutory presumption against granting planning permission for development which would fail to preserve the setting of a listed building: The Forge Field Society v. Sevenoaks District Council [2014] EWHC 1895 (Admin) per Lindblom J at [49].[79]In respect of development which causes less than substantial harm, a decision-maker is still to give considerable importance and weight to any finding of harm to a listed building when carrying out the balancing exercise: Barnwell Manor v East Northamptonshire District Council [2014] EWCA Civ 137 per Sullivan LJ at [20]-[28].[80]Mr Tucker submits that there were flaws in the decision-making process in this case. It is said that the Defendant’s conservation officer was wrong to opine that the heritage harm was outweighed by public benefits. However, as Ms Tarfur established, a number of the public benefits were heritage benefits, such as the restoration of the listed buildings and improvements to their setting. These were matters on which the conservation officer was well-placed to comment. In any event, the planning officer reached his own independent conclusion that the public benefits of the Guildhall Scheme outweighed the heritage harm. That was a matter of planning judgement, it was accepted by the planning committee and was reasonably open to the decision-maker.[81]It is said by the Claimant that the officer’s report did not recognise and apply the legal “strong presumption” against the grant of planning permission for development that causes heritage harm. However, the report refers in terms to that “strong presumption”, contains a detailed discussion of the relevant factors regarding heritage and concludes:
“Having applied the necessary weight to the statutory duties under Sections 66(1) and 72(1) of the Act, the overall balance is judged acceptable. The scheme secures the long-term future of vacant listed buildings, enhances the character of the Arboretum Conservation Area, and delivers regeneration benefits through sustainably located student accommodation. While the tower introduces change to the skyline, the level of harm is less than substantial and outweighed by the public benefits of the overall scheme. ”
[82]The Claimant submits that the planning permission did not attach any express condition that would secure reinstatement of historic appliance bay doors or the retention of the kitchenette. However, this criticism is not arguable given that the Guildhall Scheme involved the retention of key architectural features such as the stair cores, timber panelling and appliance bays.[83]It is clear from the report itself that the officer clearly considered these matters and, having done so, concluded that any harms would be outweighed by the public benefits. A strong feature of the proposal was that the Guildhall development would preserve the historic building and significant architectural features.[84]The officer’s report properly advised the committee as to the strong presumption against granting planning permission for development which would fail to preserve the setting of a Listed Building. The conservation officer was entitled to express a view on the public benefits outweighing the heritage harm, matters on which the conservation officer was well placed to comment. The key architectural features would be retained; they form part of the protected fabric of the building and would require a separate Listed Building Consent for removal.[85]It is clear from the officer’s report that this issue was considered carefully and the planning officer reached an independent planning judgement on the same. In the absence of any identified flaw in the process, Ground 3 not reasonably arguable.

Ground 4

[86]Ground 4 is alleged failure on the part of the Defendant to consider material considerations that were relevant to the acceptability of the Guildhall Scheme proposal. Reliance is placed on the fact that these matters were of sufficient importance such that they amounted to justification for the reasons for refusal in respect of the Code Scheme. The matters are:(a) the overshadowing of external amenity area;(b) the location of the site on traffic sensitive streets; and(c) the impact on the potential future development of land within the remainder of the site allocation.[87]As to (a), the Claimant’s case is that the Guildhall Scheme includes an 18 storey tower to the immediate south of proposed amenity areas and clearly raises sunlight considerations but it was not addressed. As to (c), the Claimant’s case is that the consideration was in relation to the balance of an allocated site in the development plan but it, too, was not addressed in the officer’s report in respect of the Guildhall Scheme.[88]For the reasons set out above in relation to Ground 2 above, I accept the Defendant’s submission that issues (a) and (c) were not material considerations for the Guildhall Scheme. In the context of the Guildhall application, concerns regarding (a) overshadowing and (c) the impact on the potential future development of the allocation were not mandatory material considerations, they were not raised as a significant issue by any of the stakeholders and therefore they did not arise for consideration (as opposed to the Code Scheme application).[89]As to (b), it is accepted by the Claimant that issues such as the traffic impact, refuse collection etc were addressed in the officer’s report but it is said that the application of local policy in respect of traffic sensitive streets was not addressed. This is in contrast to the Code Scheme application where this issue had some prominence in the consideration of the application. It is accepted by the Defendant that issue (b) was material but its position is that it was clearly and obviously taken into account in the officer’s report.[90]The proposed access and servicing, and its impact on the local highway network, was considered in detail in the officer’s report for the Guildhall Scheme. The conclusion reached was that the proposed arrangement was appropriate, subject to certain matters to be secured by condition, and the highways authority had no objection to the proposal.[91]It is not arguable that there was any failure to have regard to (b), as this was addressed in the officer’s report. As regards (a) and (c), the Claimant has not demonstrated that problems arose in respect of overshadowing or impact on potential future development such that the Defendant was arguably required to have regard to these matters.[92]These do not amount to reasonably arguable grounds of challenge.

Ground 5

[93]Ground 5 alleges taking into account an immaterial consideration. The Claimant’s case is that on a true construction, condition (21) is not sufficient to address wind impact. It only secures a landscaping scheme; it does not require that any such landscaping scheme also achieves wind mitigation.[94]The Defendant’s case is that it determined as a matter of planning judgement that condition (21) would be sufficient to mitigate the limited wind impact. The Wind Microclimate Assessment Report in respect of the Guildhall Scheme concluded that no potential wind safety or distress risks had been identified around the site and that appropriate landscaping would deliver acceptable wind conditions.[95]The Claimant has not identified any errors in the Wind Microclimate Assessment Report or the officer’s report that would undermine the basis on which the Defendant decided that acceptable wind mitigation could be achieved through the landscaping condition. In those circumstances, the challenge to the Defendant’s exercise of planning judgement is not arguable.

Summary on grounds of challenge

[96]In a claim for judicial review, the Claimant must establish a public law error on the part of the decision-maker. The exercise of planning judgement and the weighing of the various issues are matters for the decision-maker and not for the court. It is not sufficient for the Claimant simply to identify findings and decisions with which it disagrees. The grounds disclose no arguable error of law or principle.[97]For the reasons set out above, the court is satisfied that the papers do not disclose an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence.

Standing

[98]Torsion’s position is that the Claimant lacks standing to bring the claim. Mr Harwood KC, leading counsel for Torsion, submits that the Claimant is not materially affected by the decision challenged and did not object to application prior to the grant. It is said that the claim is an abuse of process as it is in reality an attempt to gain a benefit for the Claimant’s appeal against the refusal of their application. In so far as this is the purpose of the claim the Claimant has an alternative remedy of pursuing their appeal to the Secretary of State for Housing, Communities and Local Government.[99]Section 31(3) of the Senior Courts Act 1981 imposes a condition on an application for leave for judicial review that the applicant has a sufficient interest in the matter to which the application relates. See also: Walton v Scottish Ministers [2012] UKSC 44 at [86]-[88] and [91]-[96]; R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2004] 1 WLR per Dyson LJ at [23].[100]I accept Mr Tucker’s submissions that the Claimant has sufficient interest in the matter to bring a claim for judicial review. He does not shy away from the fact that the Claimant seeks to bolster its appeal in respect of the Code Scheme but that it not the only basis of interest in the Guildhall Scheme decision. As a proposed developer of purpose-built student accommodation in Nottingham, the Claimant has a real interest in ensuring that there is a level playing field for the assessment of such developments. If, contrary to my conclusions above, the Claimant established arguable grounds that the process of determining the Guildhall Scheme was unfair and unlawful, the Claimant would have a legitimate interest in pursuing this judicial review.

Conclusion

[101]For the reasons set out above, I refuse permission for judicial review.[102]The parties are invited to draw up and agree an appropriate order. Any disagreement as to its terms and all other consequential matters arising out of this judgment will be determined by the court on a date to be fixed following hand down.