Barbican Quarter Organisation Limited, R (on the application of) v City of London Corporation [2026] EWHC 687 (Admin)

[2026] EWHC 687 (Admin)Case No AC-2025-LON-000236
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Date Thursday, 26 th March 2026
SITTING IN LONDON
Before: MR JUSTICE FORDHAM- - - - - - - - - - - - - - - - - - - - -Between: THE KING (BARBICAN QUARTER ORGANISATION LIMITED)-and-CITY OF LONDON CORPORATION-and-CITY OF LONDON CORPORATION- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Claimant Defendant Interested Party
Estelle Dehon KC and Riccardo Calzavara
(instructed by Leigh Day & Co) for the Claimant
Neil Cameron KC (instructed by City of London Legal) for the Defendant
Rupert Warren KC and Joel Semakula
(instructed by Mishcon De Reya LLP) for the Interested Party
Hearing Hearing dates: 10.3.26 and 11.3.26Draft judgment: 16.3.26
Approved Judgment
FORDHAM J
This judgment was handed down at 10am on 26.3.26 by uploading to the National Archives.
Between
THE KING (BARBICAN QUARTER ORGANISATION LIMITED)ClaimantCITY OF LONDON CORPORATIONClaimant

FORDHAM J:

[1]This is a planning judicial review case about a self-grant of planning permission at the Barbican in London. The case raises questions about functional separation and demolition avoidance. One ground for judicial review concerns functional separation. Central to the arguments about that is reg. 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571): see §10 below. Environmental Impact Assessment is known as “EIA”. Two grounds for judicial review concern demolition avoidance. Central to the arguments about that is para 3 of Core Strategic Policy CS15 within the January 2015 City of London Local Plan: see §41 below. The parties and their legal teams have prepared and presented materials and submissions of high quality to assist the Court. When I refer to Ms Dehon KC, Mr Cameron KC or Mr Warren KC – the Lead Advocates for the Claimant, Defendant and Interested Party – I mean to include the other barristers and solicitors who contributed to the legal arguments.[2]The Claimant is the Barbican Quarter Organisation Ltd. During the planning process, the Claimant was called Barbican Quarter Action. It made detailed representations objecting to planning permission, on 31.1.24 and 5.4.24, supplying consultants’ reports and other materials. A key point made and maintained by the Claimant was that existing buildings at the site should be retained, and refurbished. That is demolition avoidance. The Defendant and Interested Party are distinct parts of the same local authority. The Defendant is the local authority acting in its capacity as local planning authority. It conducted the decision-making process. It made the decision to grant planning permission, by a resolution dated 17.4.24, implemented by the grant of planning permission on 11.12.24. Planning permission was accompanied by two listed building consents, and a unilateral undertaking. The grant of planning permission is the target for judicial review. The Interested Party is the local authority acting in its capacity as landowner and developer. It made the planning application on 20.11.23, supported by reports and other documents. It is because the same local authority was planning applicant and planning decision-maker that I spoke at the start of a self-grant. It is for that same reason that questions arose about functional separation.[3]Planning cases generate documents which are often freely accessible online. This development is “London Wall West”. At www.planning2.cityoflondon.gov.uk under planning reference 23/01304/FULEIA are 739 documents. The listed building consent references were 23/01276/LBC and 23/01277/LBC. When I refer to a document I will try to make sure I identify it clearly, and I will give page and paragraph numbers to help the parties and anyone else who wants to link what I am saying with the source materials themselves. I will try to avoid unnecessary lengthy quotations. All of the published policy documents, legislative instruments and decided cases to which I refer are freely accessible in the public domain. One of the key public domain documents is the Officer Report (“OR”), prepared by planning officers for the planning applications sub-committee meeting on 17.4.24.[4]This is how the Interested Party’s proposal was described in the planning materials. Demolition of 140 & 150 London Wall to provide a phased development comprising: the construction of new buildings for a mix of office (Class E(g)), cultural uses (Sui Generis) and food and beverage/cafe (Class E(b)), access, car parking, cycle parking and highway works including reconfiguration of the Rotunda roundabout, part demolition and reconfiguring of the Ironmongers Hall (Sui Generis), creation of a new scheduled monument viewing area, public realm alterations to Plaisterers Highwalk, John Wesley Highwalk, Bastion Highwalk and Mountjoy Close; removal of two highwalks known as Falcon Highwalk and Nettleton Court; alterations to the void, lifts and stairs at 200 Aldersgate Street and One London Wall, introduction of new City Walkway.[5]The Claimant emphasises that the Site includes the Rotunda (the former Museum of London, at 150 London Wall), Bastion House (140 London Wall), parts of Ironmongers’ Hall (Grade II listed), the western part of London Wall Car Park, Barber-Surgeons’ Gardens, the remains of (the Roman) London Wall (a scheduled monument), and the remains of Roman Fort Gate (also a scheduled monument). It is located to the south of the Barbican Estate, the majority of which is Grade II listed (being the buildings) or Grade II* listed (being the garden and other land). The development will result in the demolition of Bastion House, the Rotunda and Ferroners’ House; and the construction of 5-storey, 14-storey and 17-storey (principally office) buildings. It attracted 919 public comments, of which 893 were objections.[6]Many of the documents generated in the planning process focus on aspects of the planning merits, about which there were disagreements, and which planning officers and then committee members had to assess. The role of the judicial review Court is not to arrive at, and then substitute, its own view of the planning merits. The role of the Court is solely to decide questions of law, as to the legality of the planning decision.

CPR PD54A §15.7: the 7-day documents

[7]CPR PD54A §15.7 requires parties to provide the judicial review Court, no later than 7 days before the hearing: an agreed list of issues, an agreed bundle-referenced chronology; and an agreed bundle-referenced list of essential pre-reading (with time estimate). By CPR 54.23, this requirement applies to planning judicial review and planning statutory review claims. When permission for judicial review was granted in the present case, standard case-management directions were included within the Court order. They set out a timetable and deadline dates. They did not include the 7-day documents. Nor did they vary or disapply CPR PD54A §15.7. On pre-reading this case the day before the hearing, I found no 7-day documents had been provided. This was too late to fix. No harm was done and no criticism is made. But there is a take-away point. The 7-day documents are important. Unless CPR PD54A §15.7 has been varied or disapplied, it should be complied with, whether or not it is included in the case-management directions. Anyone who is in doubt should proactively raise this with the other parties and, if necessary, the Court. II. FUNCTIONAL SEPARATION The first ground

II. FUNCTIONAL SEPARATION

[8]The first ground for judicial review is that the Defendant failed to comply with reg. 64 of the 2017 Regulations, the legal consequence of which is that the grant of planning permission was unlawful, and the appropriate remedy is a quashing order requiring the decision to be retaken by the Defendant afresh. This raises questions of law for the Court.

The need for functional separation

[9]The Interested Party has said that since 2020 it had a strategy as landowner to submit a planning application for full demolition and redevelopment, as was stated in an unpublished 11-page report for two Interested Party landowner committee meetings on 21.9.23 and 22.9.23, disclosed only in these judicial review proceedings on 21.2.25. The Interested Party conducted landowner consultations in relation to the future of the site in May and December 2021. The planning “pre-application process” had started in late 2021 (OR §1106). That meant there was already interaction between the Defendant and the Interested Party. Functional separation was needed. Reg. 64 of the 2017 Regulations had been in force from 16.5.17. The leading case on Reg. 64 – R (London Historic Parks and Gardens Trust) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2580 (Admin) [2021] JPL 580 (see §§11-13 below) – was decided on 2.10.20. In November 2020, the Defendant set about adapting a bespoke Handling Note for the London Wall West putative planning application.

Regulation 64

[10]Here is reg. 64: 64. Objectivity and bias.(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.

London Historic

[11]In addressing an issue about the legal adequacy of reg. 64 in transposing the relevant EU legislation, Holgate J in London Historic at §94 identified four basic requirements of independence. These involved:(i) decision-making by a distinct resourced internal entity;(ii) a prohibition on dual assistance (the same official assisting in both the public authority developer team and the public authority decision-making team);(iii) a prohibition on inapt cross-team communication or discussion; and(iv) a prohibition on cross-team instruction or pressure.[12]In addressing an issue about whether the Secretary of State’s proposed handling arrangements complied with reg. 64(2), Holgate J explained in London Historic at §126 that principles of certainty required handling arrangements to be(a) published and(b) communicated as necessary to comply with the reg. 64(2) obligations: I accept [Counsel]’s criticisms that the current version of the handling arrangements fails to refer to reg.64(2) and that there has also been a failure to publish the document. These requirements derive from the principle of legal certainty. They are matters of substance and not mere formalism. It is important to bring home to those to whom the arrangements apply, whether involved in the promotion of the development or the handling of the application by the competent authority, that the document lays down a regime in order to comply with the Secretary of State’s legal obligations under reg.64(2), and that those obligations are enforceable in the courts. Accordingly, ministers and officials must understand that they have to comply with the arrangements. The document is not to be treated as simply guidance. The document, and any amended version, should also be published so that the public is aware that it sets out the arrangements made by the Secretary of State in order to comply with his legal obligations under reg.64(2).[13]Included as an appendix to Holgate J’s judgment in London Historic were the Secretary of State’s proposed handling arrangements in that case. Within these were the following two proposed actions: [i] “Clearly mark who can and cannot be allowed to see the document in question on all submissions/emails etc – eg. by clearly marking all relevant mails/submissions as follows HOLOCAUST MEMORIAL PLANNING CASEWORK TEAM ONLY”; and [ii] “Ensure that material related to the case is not stored on shared file spaces accessible by those outside of the decision-making chain”.

The Handling Note

[14]In light of the reg. 64(2) duty and the London Historic case, the Defendant designed and published a 5-page “Handling Note”, the final version of which was dated 28.3.24. Earlier versions were dated March 2022 and June 2022. Nothing in this case turns on any difference in wording with versions at different times. So I can focus on the March 2024 document. The Handling Note describes the proposal. It describes the reg. 64(2) duty. It contains overarching principles, arrangements for handling, and implementation of those arrangements. It lists 16 named officers on the Defendant’s planning side. It lists 15 named officers on the Interested Party developer’s side, as well as the consultants and agents. The 15 named officers on the Interested Party developer’s side included Clarisse Tavin (city public realm officer), Gillian Howard (transportation and highways officer), Laura Kearney (legal officer) and Deborah Cluett (legal officer). The Handling Note was required to be circulated to all listed individuals (§3.3.5), and the Claimant has not raised any concern as to whether that took place. It is common ground that the Handling Note addressed the four basic requirements of independence from London Historic at §94 (§11 above), and that those relevant arrangements for compliance with those four basic requirements were properly implemented during the planning process. It is common ground that the Handling Note was published. It was required to be published and included within the publicly available planning application documents (§3.3.4). It is also common ground that the Handling Note communicated that compliance with its arrangements was necessary so as to comply with the reg. 64(2) obligations. As to that, the Handling Note said this at §1.2: 1.2 This note sets out the arrangements which must be adopted to ensure compliance with the EIA Regulations.

Committee members

[15]At an earlier stage in these judicial review proceedings, there was an issue as to whether committee membership and participation on the landowner side and the planning side had departed from the arrangements in the Handling Note. After evidence and disclosure from the Defendant and Interested Party, the Claimant has accepted that there was compliance.

The requirement of inaccessible file storage

[16]Like the handling arrangements in London Historic (§13 above), the Handling Note made clear provision about documentary accessibility, including on computer systems. Here is §3.3.6 of the Handling Note (emphasis added): 3.3.6 Any communications, documents or other information generated by those exercising the Local Planning Authority function which would not normally be shared with an Applicant should be marked “CONFIDENTIAL: LOCAL PLANNING AUTHORITY ONLY”, and should not be stored on file space accessible to any person other than those exercising the Local Planning Authority function (unless this is authorised by the Interim Development Director and Chief Planner and he has satisfied himself that, where applicable, such disclosure would be compliant with the EIA Regulations).

What happened regarding accessibility and access

[17]It is not going to be necessary to go into detail about what happened in the implementation of the inaccessible file storage provision in the Handling Note (§3.3.6). There has been disclosure of relevant documents by the Defendant and Interested Party and no concern as to the adequacy of that disclosure was raised. There has been witness statement evidence from all of the individuals in respect of whom access and accessibility concerns were raised. There are three key points as to what happened. i) First, there were shared folders, which ought to have had with them confidential subfolders inaccessible to the Interested Party development team officers and legal officers. Four such folders were identified. There was a London Wall West folder within a SharePoint site which was accessible to all officers, including Ms Tavin and Ms Howard. There were also 3 folders (also described as files) which were accessible to all legal officers, including Ms Kearney and Ms Cluett. These were folders with numbers ending 007/005 (unilateral undertaking), 002/044 (general legal advice) and 001/115 (general legal advice/committee). Each of these should have had, designed within them, confidential subfolders whose contents would then be inaccessible to Ms Tavin, Ms Howard, Ms Kearney and Ms Cluett. The sub-folder door would have been locked. Officers would not have been able to get in, however hard they tried. ii) Second, there were documents which ought to have been within those four inaccessible confidential subfolders, but which were instead accessible within the four folders. This was expressly accepted by the Defendant. Mr Cameron KC confirmed that position in open court. Mr Warren KC belatedly contested it, and I will need to come back to that contestation. The problem came to light in response to an information request in the Claimant’s letter before claim of 24.12.24, asking for “[a] list and copy of all communications, documentation or other information generated by those exercising the local planning authority function that has been stored on a file space which is accessible to any person other than those exercising the local planning authority function”. The Defendant’s letter of response of 14.1.25 described the 4 folders and accessibility. It provided a 15-page table listing documents which had been accessible within the 4 folders. Alongside those documents disclosed at the pre-action stage, the Defendant has explained that there is a set of documents which were accessible within the folders, but which have not been disclosed or described because legal professional privilege is asserted and maintained. The Defendant accepts that each of the documents listed within the Table, and each of the LPP documents, was a document which ought to have been within an inaccessible subfolder, but was not. It has not been said that access was authorised by the Interim Development Director and Chief Planner being satisfied that disclosure would be compliant with the 2017 Regulations. iii) Third, there is the direct witness statement evidence of what happened, evidence given by each of the relevant officers, which addresses the question of whether any of these documents which ought to have been within an inaccessible sub-folder was in fact accessed by them. Each of Ms Tavin, Ms Howard, Ms Kearney and Ms Cluett has given a clear description of what they did and did not do; what access they had; what documents they uploaded; and why. Each has stated, verified by a statement of truth, that they did not access from the folders any of the documents which the Defendant has identified in its disclosure. Some of the documents – including emails in which they were themselves cc’d – were documents seen or accessed in other appropriate ways. But no document was accessed through the folders. That is the evidence.

Whether to accept witness statement evidence

[18]The question arises as to whether the Court should accept the witness statement of the four relevant individuals, in particular that they did not access any of the documents which ought to have been inaccessible. Ms Dehon KC for the Claimant rightly recognises that it was, in principle, open to her to invite the Court to reject that evidence and find that there was – or may have been – access. The onus on this point is on the Defendant, on the basis that they who assert must prove. The evidence is put forward by the Defendant in support of its claim that there was no reg. 64(2) breach, or no material breach, or no vitiating breach, or that a remedy should be refused on common law discretionary grounds or under the statutory materiality test. As Ms Dehon KC rightly recognised, the Claimant was entitled to identify a factual issue as being in issue, whose resolution was necessary. There could have been an application to cross-examine. There could have been an invitation to reject witness statement evidence, for example because it “cannot be correct”; because it is contradicted by “undisputed objective evidence… that cannot sensibly be explained away”; or because it is “on balance, inconsistent with other written evidence”. There could have been a submission that the factual dispute cannot be resolved and the point should be treated as not proved. The principles are all encapsulated in the Judicial Review Guide 2025 at §11.2.3. Ms Dehon KC accepted, fairly and sensibly, that she has no basis along any of these lines to invite the Court to reject the clear evidence of each of Ms Tavin, Ms Howard, Ms Kearney and Ms Cluett. She also accepted that, viewed in terms of the conduct of the four relevant individuals, each of those individuals “did nothing wrong”.

My findings

[19]I find as follows: i) There was no access by Ms Tavin, Ms Howard, Ms Kearney or Ms Cluett to any document which, acting in compliance with Handling Note §3.3.6, ought to have been in an inaccessible sub-folder. That is a finding of fact. ii) Had the accessibility arrangements been compliant with §3.3.6:(a) no action by any officer would have been any different from what it was;(b) the planning decision would inevitably have been the same; and(c) the planning decision-making process would inevitably have been the same. These are confident conclusions, to the common law’s high standard of inevitability, based on an objective evaluation of the evidence, and placing the onus on the Defendant.

Mr Warren KC’s short-cut on §3.3.6 compliance

[20]I am now returning to Mr Warren KC’s belated contestation of the second point as to what happened (see §17ii above). In his oral submissions he told me the Interested Party disagreed with the Defendant on that point. His argument, in essence, was as follows. Handling Note §3.3.6 has a specific design. It does not have the same generality as was the information request in the letter before claim (see §17ii above). It applies only to “communications, documents or other information generated by those exercising the Local Planning Authority function which would not normally be shared with an Applicant”. In fact, none of the items listed in the Defendant’s 15-page Table to its letter of response fall within that description. None of them would have needed to be put into an inaccessible sub-folder. They were all documents which would normally be shared with a private developer applying for planning permission. If someone within the Defendant had gone through each document at the time and applied §3.3.6, each document would have remained accessible within the folder. This can be seen by taking examples from the descriptions of the documents within the Table. This was a short-cut answer to the ground for judicial review based on breach of reg.64(2). All documents were exactly where they should have been. There was compliance with §3.3.6. That was the argument.[21]I have been unable to accept that this is a good – or even a fair – answer to the claim. This is why. First, it was a straightforward point which could and should squarely have been taken promptly, but never was. This is a point about procedural rigour and fairness. Mr Warren KC pointed to §23 of his skeleton argument (23.2.26). That made a point about officer access to the documents not having been “inappropriate”, because the documents would have been provided to any applicant party. That was a different point. It was dealing only with the legal officers Ms Cluett and Ms Kearney. It was dealing only with the documents which those legal officers accepted that they had accessed, but by alternative routes and not the local planning authority folders. It was not a general point, about all the documents; including those which were not accessed by Ms Cluett and Ms Kearney; including those accessible to Ms Tavin and Ms Howard. Mr Warren KC sought to persuade me that his shortcut point had been pleaded all along in the Interested Party’s Defence (4.11.25). He took me to Defence §23, but that simply mirrors the point in the skeleton argument at §23. He took me to Defence §24, which says:
“the point is that neither Ms Cluett nor Ms Kearney accessed the substantive LPA-only documents that were confidential to the determination process”
. The word “accessed” in that sentence is underlined in the Defence. This is not pleading that all the documents which were accessible were documents which would normally be shared with an applicant. Indeed, the phrase “the documents that were confidential” supports there having been some which were accessible, albeit that they were not in fact accessed. The short-cut point is a straightforward point. It was, and is, very easy to articulate. It is an obvious point which it was easy to take if it was being relied on. But it was not in the pleaded Defence. It was not even in the skeleton argument. It was raised for the first time in Mr Warren KC’s oral submissions on the second day of the substantive hearing.[22]Mr Warren KC wisely accepted that, if it was not open to him to advance his shortcut argument on the basis of his presently pleaded Defence, he did not wish to make a late oral application on day 2 of the substantive hearing, to amend the Defence to take the point. I did not hear any such application but I cannot imagine that I would have granted it. The shortcut argument was an obvious and straightforward point. It could and should have been taken squarely and well ahead of the preparation of evidence and submissions for the substantive hearing. It would have called for a careful substantive response, with an analysis to see whether the position could be sustained that the documents all clearly fall within the category of documents which would normally be shared with an applicant. The Defendant would have responded with its detailed explanation. So would the Claimant. No party was in a position at the hearing to be able to have performed the sort of analysis for which the shortcut argument would have called.[23]Before leaving the shortcut argument, I will mention two further problems with it. The first is this. The Defendant does not support this analysis. The Defendant squarely recognises that documents listed in the 15-page Table, indeed each and every one of the documents listed within the Table, should and would have been placed in the confidential and inaccessible subfolder that should have been created but was not. That was the basis on which the Defendant asked the Court to determine the judicial review claim. The second is this. I was unable to see how Mr Warren KC’s shortcut would be able to deal, or deal fairly, with the undescribed series of documents in relation to which legal professional privilege is asserted and maintained. How could the Court possibly conclude that those documents each constituted a document which would normally be shared with an applicant for planning permission? Mr Cameron KC and Ms Dehon KC each emphasised that there was this set of LPP documents, whose details had not been disclosed by the Defendant.

Vitiating breach of reg. 64(2): the Claimant’s case

[24]Here is the essence, as I saw it, of the Claimant’s argument on this first ground for judicial review. i) There was a clear breach of Handling Note §3.3.6, because documents were accessible which were expressly required to be made inaccessible. That in turn means there was a breach of reg. 64(2). Non-implementation of the published arrangements is itself a breach of the reg. 64(2) duty: see London Historic at §126 (see §12 above). ii) This is because the statutory duty was an ongoing one. Its ongoing nature required implementation of the Handling Note in accordance with its terms. True, the design and publication of the Handling Note (28.3.24) was the making of an appropriate administrative arrangement to ensure functional separation, for the purpose of reg. 64(2). But a failure to put and keep in place what was described in the published Handling Note was itself a failure to make the appropriate administrative arrangements. The set-up of the computer files, with accessibility or inaccessibility, was an administrative arrangement. But it was not the appropriate administrative arrangement which the Defendant had identified. The breach of statutory duty was the failure to make documents inaccessible on the computer system, in compliance with the Handling Note. iii) This breach of statutory duty is not simply a freestanding act of reg. 64(2) unlawfulness by the Defendant. Rather, it is a vitiating breach of reg. 64(2). It infects the decision to grant planning permission. It means the decision to grant planning permission is, necessarily, an unlawful decision. True, there is in law a distinct question about whether a recognised breach of a statutory duty also has the legal consequence of vitiating an impugned decision: see R v Soneji [2005] UKHL 49 [2006] 1 AC 340, discussed in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489 [2025] 4 WLR 58 at §49. But the answer is in substance automatically yes in the context of a statutory duty within EIA regulations. That is because of their origin in EU legislation (as to reg. 64, see London Historic), and because of the public participation and confidence imperative to which the duties are inextricably linked. Breaches of EIA statutory duties are necessarily material; they are necessarily vitiating flaws. There is no such thing as substantial compliance or a technical breach. The Court must therefore recognise the unlawfulness of the decision to grant planning permission, being vitiated in law by the breach of statutory duty. iv) There is a distinct question of “whether a remedy should be refused … as a matter of discretion on the part of the court” (Bradbury §49). This is the familiar Berkeley line of cases: see especially Walton v Scottish Ministers [2012] UKSC 44 [2013] PTSR 51 at §§124-133; and R (Champion) v North Norfolk District Council [2015] UKSC 52 [2015] 1 WLR 3710 at §§54 and 58-59. But the discussion in Walton about lack of “prejudice” is inapplicable to the present case. That was referable to a specific statutory precondition, by which the claimant there needed to show a failure to comply with a statutory requirement by which failure “the interests of the applicant have been substantially prejudiced” (see Walton at §9). No such statutory precondition applies to a planning judicial review claimant. In this case, the Court should not exercise its discretion to refuse a remedy. A quashing order should be made. The Claimant and the public have not in practice enjoyed the rights conferred by reg. 64(2). The defect invoked is serious; and the breach had deprived the public of a relevant guarantee (Champion §58). The defendant was statutorily required to have, and implement, appropriate arrangements to ensure functional separation. It did not do so. The public and the Claimant have not had a planning decision in which the functional separation guarantee was delivered. Appearances matter, as they do in the law on apparent bias, and reg. 64 is about objectivity and bias. It is delivery of appropriate arrangements for functional separation which, alone, can achieve public confidence. There is a high value here, in due process and public confidence terms. It is a value of such importance that the Court should vindicate it by quashing the decision and requiring the decision to be retaken with a process which delivers those guarantees. v) There is a distinct question under the statutory materiality duty in s.31(2A)(a) of the Senior Courts Act 1981. The question is “whether a remedy should be refused pursuant to s.31(2A)” (Bradbury §49). The s.31(2A) test is whether “it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. The Court is “evaluating the significance of the error on the decision-making process”; “considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error”; where “it is not for the court to try and predict what the public authority might have done if it had not made the error” (Bradbury §71). The answer, in applying the statutory materiality duty in the present case, is this. The “outcome for” the Claimant must be approached in a special way. This is not disregarding the test “for reasons of exceptional public interest” (s.31(2B)). It is an adjustment necessitated by the high value of the process guarantees reflected in EU-based EIA statutory duties. Here, “the outcome” and “the decision” would be materially different where the planning decision is reached by a process which complies with reg. 64(2). The “outcome” is not simply the planning decision. It is the planning decision coupled with the guaranteed due process to achieve the high value public interest and public confidence. That value transcends what would or might have made a difference to planning permission; just as a prisoner’s right to an oral hearing can transcend what would or might have made a difference to a parole board decision. Unless the decision is quashed and remitted for the legally guaranteed process, the value is defeated. Once the “outcome” is the planning decision coupled with the due process of reg. 64(2) compliance, it follows that the “outcome for the Claimant would … have been substantially different” if Handling Note §3.3.4 and so reg. 64(2) had been complied with. No s.31(2B) duty to refuse a remedy can therefore arise. vi) That was the essence of the argument on the first ground for judicial review.

My conclusions on the first ground

[25]By this argument, Ms Dehon KC has provided a clear chain of reasoning through to a decision to quash the grant of planning permission. But I am not able to accept the argument. In my judgment, three separate links in the legal chain of reasoning all break. Any one of the three broken links in the chain would be fatal. Before I turn to the three broken links, I will deal with three issues. They featured in the arguments of Mr Cameron KC and/or Mr Warren KC. On each of these three issues, I find in the Claimant’s favour.

Reg. 64(2) and performing an EIA duty

[26]The first issue on which I find in the Claimant’s favour was a point emphasised by both Mr Cameron KC and Mr Warren KC. They emphasise that reg. 64(2) requires functional separation only “when performing any duty under these Regulations”. I was shown reg. 3 (a prohibition on granting planning permission in the absence of an EIA) and reg. 26 (statutory duties as to consideration, reasoning and response so far as the environmental information is concerned). Mr Warren KC emphasised that many planning applications do not engage EIA duties. But this one did. The real question is this. When dealing with an EIA planning proposal, does functional separation operate as an oscillating requirement – now you see it now you don’t – depending on whether the substance of the planning merits engages the EIA or the environmental information? That analysis was disavowed by Mr Cameron KC and Mr Warren KC. Nor did they seek to show, as a factor relevant to the Court’s discretion, that the documents which were accessible in the folders all fell outside environmental information and EIA. I cannot see this first issue as an impediment to the Claimant’s argument succeeding, if it is otherwise sound.

Reg. 64(2) as an ongoing statutory duty

[27]The second issue on which I find in the Claimant’s favour was a point made by Mr Cameron KC. It is about reg. 64(2) as an ongoing statutory duty, engaged when the Handling Note comes to be implemented (see §24ii above). Mr Cameron KC argued that “must make appropriate arrangements to ensure that there is a functional separation” in reg. 64(2) is correctly interpreted as meaning “must design appropriate administrative arrangements to ensure, and must in implementing those arrangements ensure, that there is a functional separation”. His point was that the “appropriate arrangements” were the Handling Note which the Defendant acted by designing them to “make”; and that there would only be a breach of statutory duty at the implementation stage of those arrangements if the Claimant could show that the implementation failed to “ensure that there is a functional separation”. As to this: i) Ms Dehon KC’s interpretation was different. She supported her argument about an ongoing statutory duty (see §24ii above) by this suggested interpretation. She said that “must make appropriate arrangements to ensure that there is a functional separation” in reg. 64(2) is correctly interpreted as meaning “must design and deliver appropriate arrangements to ensure that there is a functional separation”. Mr Warren KC agreed with her about this. ii) Nobody argued that reg. 64(2) operates as a duty to promulgate a published document to which public law then attaches a duty of adherence absent a good reason for departure. There would be a tension between that analysis and the analysis in London Historic at §126 (§12 above), that published handling arrangements are not “guidance”. I can put this to one side. iii) I prefer the Dehon/Warren interpretation. I think it is correct. That is for these reasons. First, “design and deliver” is a natural and ordinary meaning of “make”, especially in the context of “appropriate administrative arrangements”. It entails that “make” includes “make happen”. Second, it is a natural and ordinary meaning of “administrative arrangements” that they include the practical steps taken on the ground in implementation. In this case, folder-accessibility were administrative arrangements, but they were not the “appropriate” administrative arrangements identified by the relevant “authority”. Those appropriate administrative arrangements had been identified in the Handling Note. Third, another way of looking at it would involve “make” as meaning “deliver” but “appropriate administrative arrangements” as meaning those arrangements which the Authority has identified as appropriate. It comes to the same thing. The duty is to design and then to deliver what has been designed. Fourth, the Dehon/Warren interpretation retains the prism deliberately used in the regulation. The duty is framed as discharged through the prism of an evaluative assessment of appropriateness, which the relevant authority is required to undertake. It is not an objective question for a court. The Dehon/Warren interpretation means the authority has to implement what it has identified as appropriate. The Cameron interpretation removes that prism, removes appropriateness, and exposes a question of ensuring a functional separate. Fifth, this interpretation fits best with authority. That is because London Historic at §126 (see §12 above) treats as legal obligations, necessary for compliance with reg. 64(2), the measures as designed in the published handling arrangements.

Breach of the reg. 64(2) duty

[28]The third issue on which I find in the Claimant’s favour is the question whether there was a breach of reg. 64(2): see §24i above. Mr Cameron KC and Mr Warren KC submit that there is no breach of reg.64(2) where it can be seen that functional separation has in fact been secured. They emphasise ensuring functional separation as the discernible statutory purpose. They rely on the idea of substantial compliance; and the idea of the absence of prejudice. On this issue, I prefer the submissions of Ms Dehon KC. My reasons are as follows. i) First, this argument about breach comes very close to rerunning Mr Cameron KC’s failed argument about statutory interpretation. The statutory duty on the authority is to design arrangements appropriate for ensuring a functional separation, and then delivering those arrangements. The authority has to deliver what it identifies as appropriate. ii) Second, the position should be capable of being tested in this way. Suppose that during the planning process someone within the Defendant had asked the question: is this arrangement in breach of our statutory duty? Suppose legal advice were sought. It is, in my judgment, important that a straightforward answer can be given. Yes, you are in breach if you are not delivering what you have assessed are appropriate arrangements for ensuring functional separation. The answer is not: well, it all depends on what happens and what people do and whether officers try to access documents and whether there is prejudice, or whether something is fortuitously achieved or avoided. iii) Third, this is Handling Note §1.2. It is London Historic §126 (see §12 above): implementation is legal duty; this is not mere “guidance”. The discipline is in designing appropriate arrangements, and then delivering those arrangements. The consequence of the analysis so far is this. There was a breach of reg. 64(2), because the Defendant did not make the appropriate administrative arrangements. It did not deliver on what it said it would do, having identified what it needed to deliver. That means, if this had been a judicial review in which the impugned action was the breach of statutory duty in reg. 64(2), and in which the remedy sought and resisted was a declaration of breach, then such a claim would succeed. But that is not this claim. This is squarely a challenge to the planning decision, and nothing else.

Discretionary refusal of a remedy

[29]I turn to the three broken links in the Claimant’s reasoning chain. One broken link concerns the Court’s discretion to refuse a remedy, on the premise that the chain has not broken already. I have summarised the essence of the Claimant’s argument on this point (see §24iv above). But I am unable to accept it. I agree with Mr Cameron KC and Mr Warren KC. My findings (see §19 above) mean this is a clear case where the Court has been able confidently to conclude – with the onus on the Defendant and based on evidence – that the planning decision, and indeed decision-making process, would inevitably have been the same. Even if I treat the accessible storage in breach of Handling Note §3.3.6 as a “procedural defect”, that puts this case squarely within the description in the EIA case of Champion at §58. The “contested decision” is the planning permission and it “would not have been different without the procedural defect invoked”. As to the “seriousness of the defect” and whether the public was “deprived … of … guarantees” (Champion §58), no officer accessed a document that they should not have accessed. The door of inaccessibility should have been locked. But nobody opened the unlocked door. Nobody even tried. As to appearances and apparent bias, the well-informed observer is taken to be informed by the facts, and this is very different from a case where there was actual cross-team input or membership. As to public confidence, the position is clear and has now been established in a judicial process, on evidence. There is no public “access to information” or “participation in decision-making” guarantee which was impaired (Champion §58). Nothing inappropriate entered, or was left out of, the decision-making. That is the clear practical reality. The public interest and public confidence stand restored. A quashing order would, in my judgment, be unjustifiable and disproportionate.[30]For these reasons alone, the claim cannot succeed on the first ground for judicial review. But there is an additional perspective. It involves asking (see Champion §54) whether the Court can be satisfied that there has been no “prejudice”, to the Claimant’s “interests”. I accept that the Walton case involved a statutory right of challenge where the claimant had to establish not just breach but also substantial prejudice. That means caution is called for in considering the cross-reference made in Champion at §54 to Walton at §139. But there is a deliberate second cross-reference in Champion at §54 to Walton at §155, a passage where Lord Hope explicitly made a broader point about “the discretion which [the court] would have at common law”. There is no good reason why a finding of zero-prejudice should play a zero-role when exercising the common law discretion. This case is a clear case of an absence of prejudice.

Statutory materiality duty

[31]A second broken link concerns the statutory materiality duty, on the premise that the chain has not broken already. I have summarised the essence of the Claimant’s argument on this point (see §24v above). But I am unable to accept it. I refer to my findings (see §19 above) and to what I have just said regarding the discretionary refusal of a remedy (§§29-30 above). I have been unable, in the present case, to adopt Ms Dehon KC’s adjusted “outcome” analysis which links the planning decision to procedural due process. These are my reasons. i) I would not exclude that there may be cases involving the defeat of a process value, associated with a substantive decision, which is so fundamental and intrinsic that the Court will be astute to protect it. An example could be the right to a reasoned decision, where an unreasoned decision is not the same “outcome for the claimant”. Ms Dehon KC may be right that the parole board oral hearing cases could be an illustration, to ensure that participatory-justice transcends outcome-utility (cf. R (Clarke) v Parole Board [2025] EWHC 190 (Admin) at §§14, 16). But even in a case where a process value is fundamental and intrinsic, the answer may very often be found in the Court’s inability to say objectively and without speculation that it is “highly” likely that the decision would have been the same. There may also be scope for a public interest imperative to support the invocation of the “exceptional public interest” disapplication of the statutory materiality duty (s.31(2B)). ii) I find it impossible to characterise the present case as one in which a fundamental and intrinsic due process value has been defeated. Nothing fundamental or intrinsic has been impaired, still less defeated. I would not find it had been, even if no authority stood in the way. Both the decision and the decision-making process would inevitably have been the same. iii) There is clear authority which does stand in the way. Comprehensive citation of authority on the statutory materiality duty was unnecessary. Bradbury was an environmental case, in which what were breached were habitats impact assessment duties, with their origin in EU legislation. The consequence was that the relevant impacts had not been considered before the making of the impugned decision. The Court of Appeal was clear that “the outcome for the claimant” meant “the decision” (at §71). The statutory materiality duty was applied and the claim failed. Bradbury would have been a far stronger case of a loss of something fundamental and intrinsic to the substantive decision.

Vitiating breach of statutory duty

[32]What I have said so far means there are two freestanding bases for refusing the quashing order sought in this judicial review claim. But I have concluded that there is a third broken link. It comes earlier in the reasoning chain. It concerns whether the breach of statutory duty – which I have found (see §28 above) – was a vitiating breach which meant that the planning decision was unlawful. I have summarised the essence of the Claimant’s argument on this point (see §24iii above). But I am unable to accept it. These are my reasons. i) The reference-point is Bradbury at §49, where Lewis LJ emphasised as a “separate” question, needing to be considered separately, whether a breach of statutory duty automatically rendered the subsequent decision unlawful. That was in a passage about breach of a statutory duty to publish habitats assessments ahead of a planning committee meeting (Bradbury at §§2, 11). Ms Dehon KC is right, in my judgment, to recognise that the same distinct question arises in the context of the reg. 64(2) statutory duty. Suppose there had been a breach of Handling Note §3.3.4, and so a breach of reg. 64(2), because the Handling Note was “published” but not “included within the publicly available planning application documents”. The test is the intended vitiating consequence test in Soneji (cited in Bradbury at §49). ii) I am unable to accept that the answer to the Soneji question is that there is always an automatic vitiating consequence whenever any statutory duty is breached, provided that duty is in EIA regulations with an EU-legislation origin. I was shown no authority which establishes that proposition. I do not think it can be right. iii) I have already decided that the correct interpretation of the reg. 64(2) duty is that the authority is required to deliver the appropriate administrative arrangements. But I am unable to interpret reg. 64(2) as intending an automatic vitiating consequence for a decision to grant planning permission, wherever there has been a breach because an appropriate administrative arrangement was not delivered. The purpose of the statutory duty, and of the administrative arrangements, is to ensure functional separation. The authority must deliver on the arrangements which it designs. To fail to do so is a breach of the statutory duty. But it does not follow automatically that the planning permission decision will be unlawful. That involves a further step. iv) In my judgment, the correct interpretation of reg. 64(2) is that breach does not have an automatic vitiating consequence for the decision which is taken in relation to the proposal for development. Suppose, for example, there is a breach but planning permission is refused. The authority as developer fails to obtain planning permission from the authority as decision-maker. I find it impossible to accept that it would be right to describe the planning refusal decision as unlawful. The point is that the breach – and any question of functional separation – goes nowhere when the decision is to refuse. v) I would put it this way. In my judgment, the correct interpretation of reg. 64(2) is that breach does not have an automatic vitiating consequence for the decision which is taken in relation to the proposal for development, where the breach of statutory duty demonstrably can have had no bearing on the decision. The paradigm case is where the breach has demonstrably had no bearing on the decision-making process, let alone the decision. That is this case. In my judgment, there was a breach of statutory duty, but the planning decision was nevertheless lawful.[33]There are two footnotes to the analysis of this point. First, I recognise that another way of putting the same essential conclusion is to say that functional separation has demonstrably been ensured. Second, I recognise that what I have said on the topic of vitiating breach is similar to what Mr Cameron KC and Mr Warren KC were saying under the distinct topic of breach of statutory duty (see §28 above). As to that, although I have the clear view that the planning permission decision was lawful, I have resisted the temptation to reverse-engineer a conclusion that there was no breach of statutory duty.

Conclusion on the first ground

[34]For all these reasons, I reject the first ground for judicial review. III. DEMOLITION AVOIDANCE The second and third grounds

III. DEMOLITION AVOIDANCE

[35]The second ground for judicial review is that the Defendant misunderstood and/or failed to apply Local Plan Policy CS15. The third ground for judicial review is that the Defendant failed to conduct adequate enquiries and/or deal appropriately with alternative schemes. In each case, the legal consequence is that the grant of planning permission was unlawful, and the appropriate remedy is a quashing order requiring the decision to be retaken by the Defendant afresh. These grounds raise questions of law for the Court. The second ground has an additional pleaded aspect relating to the legal inadequacy of reasons. The third ground begins with Policy CS15 but then relies on legal insufficiency of enquiry independently of that Policy.

Mansell principles: misleading officers’ advice

[36]R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314 [2019] PTSR 1452 explains at §42(2) that planning officer’s advice to committee members will vitiate their planning decision if the advice is “significantly or seriously misleading”, meaning “misleading in a material way”, so that there is “some distinct and material defect”; such as where it has “plainly misdirected the members as to the meaning of a relevant policy”; or where it has “failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law”.

Balajigari principles: legally insufficient enquiry

[37]R (Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673 [2019] 1 WLR 4647 explains at §70 the relevant principles of legally sufficient enquiry, from which I extract for present purposes: that the obligation on the public authority decision-maker is only to take such steps to inform themselves as are reasonable; that subject to a test of unreasonableness, it is for the public authority and not the judicial review Court to decide upon the manner and intensity of enquiry to be undertaken; that the Court should not intervene merely because it considers that further enquiries would have been sensible or desirable, but only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision; that the Court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient.

Mount Cook principles: alternative scheme as a material planning consideration

[38]R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 [2017] PTSR 1166 explains at §30 that in planning law:(1) a landowner may do what they like with their land provided their use of it is acceptable in planning terms;(2) there may be a number of acceptable alternative uses;(3) whether any proposed use is acceptable depends on whether it would cause planning harm judged according to any relevant planning policies;(4) in the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site are normally irrelevant in planning terms;(5) where an application proposal does not conflict with policy, and otherwise involves no planning harm, any alternative proposals would normally be irrelevant; and(6) even where, in exceptional circumstances, alternative proposals might be relevant, inchoate or vague schemes and/or those that are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight.

The development plan

[39]I can take these uncontroversial basics regarding the development plan from the Claimant’s skeleton argument.(1) In dealing with an application for planning permission, the planning authority is required to have regard to the material provisions of the development plan (Town and Country Planning Act 1990 s.70(2)).(2) The determination of such application “must be made in accordance with the plan unless material considerations indicate otherwise” (Planning and Compulsory Purchase Act 2004 s.38(6)).(3) What is needed is “an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal fairs against them” (Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) [2016] JPL 171 at §30.

Local Plan Policy CS15

[40]Within the City of London Local Plan January 2015 at pp.123-159 there is a chapter on “environmental sustainability”, within which section 3.15 is “sustainable development and climate change” (pp.124-134). The chapter starts with Strategic Objective 4:
“To ensure that the City of London remains at the forefront of action in response to climate change and other sustainability challenges that face high density urban environments, aiming to achieve national and international recognition for its sustainability initiatives”
. The section continues with text which (p.124 §3.15.1) says:
“The City of London is a sustainable location, with good public transport, a high density of development and many small open spaces, making best use of the available land. All development takes place on previously developed land”
. What follows (p.125) is “Core Strategic Policy CS15: Sustainable Development and Climate Change”. Then there is a set of “development management policies”: DM15.1 (Sustainability requirements); DM 15.2 (Energy and CO2 emissions assessments); DM 15.3 (Low and zero carbon technologies); DM 15.4 (Offsetting of carbon emissions); DM 15.5 (Climate change resilience and adaptation); DM 15.6 (Air quality); DM 15.7 (Noise and light pollution); DM 15.8 (Contaminated land and water quality). There is then a Table (pp.133-134) describing “who will deliver” and “how we will make it happen”, for: sustainable design; resource use and carbon footprint; environmental protection; and climate change and urban heat island.[41]Within this setting is Core Strategic Policy CS15. Here it is: Core Strategic Policy CS15: Sustainable Development and Climate Change. To enable City businesses and residents to make sustainable choices in their daily activities creating a more sustainable City, adapted to the changing climate, by: [1] Requiring all redevelopment proposals to demonstrate the highest feasible and viable sustainability standards in the design, construction, operation and “end of life” phases of development. Proposals for major development should aim to achieve a BREEAM rating of “excellent” or “outstanding”. Residential development should aim to achieve a minimum standard of Code for Sustainable Homes level 4, rising to level 6 by 2016 or in line with government targets. [2] Requiring development to minimise carbon emissions and contribute to a City wide reduction in emissions:(i) adopting energy-efficiency measures;(ii) enabling the use of decentralised energy, including the safeguarded Citigen Combined Cooling Heating and Power (CCHP) network, CCHPready designs in areas where CCHP networks are not yet available, and localised renewable energy technologies;(iii) adopting offsetting measures to achieve the Government’s zero carbon targets for buildings. [3] Avoiding demolition through the reuse of existing buildings or their main structures, and minimising the disruption to businesses and residents, using sustainably sourced materials and conserving water resources. [4] Requiring development to positively address: (i) local air quality, particularly nitrogen dioxide and particulates PM10 (the City’s Air Quality Management Area pollutants); (ii) protection of the City’s quiet areas and quiet times of day for businesses (daytime) and residents (night time); (iii) the need to limit the City’s contribution to light spillage and ‘sky glow’;(iv) water quality and flood risk particularly in areas at risk of sewer flooding;(v) land contamination, ensuring development does not result in contaminated land;(vi) the need to enhance biodiversity and provide for its conservation and enhancement, particularly for the City’s flagship species and the City’s priority habitats (urban green spaces, churchyards and cemeteries, built structures and the tidal Thames). [5] Incorporating climate change adaptation measures into development and the City’s infrastructure, including street scene, transport and utility infrastructure, social and emergency infrastructure, and heritage assets, having regard to the need to protect their historic significance.[42]The second ground for judicial review focuses on paragraph [3] of CS15. That paragraph is also the starting point for the third ground.

The Planning Advice Note

[43]In March 2023 the Defendant published a 43-page Planning Advice Note. It is entitled “Carbon Options Guidance”. It discusses climate change (p.5) and the climate action strategy 2020-2027 (p.6). It then provides the carbon options guidance (p.7), quoting CS15 paragraph [3] (p.8), and describing “Whole Life-Cycle Carbon Assessments” (p.9) and a methodology called “Carbon Optioneering” (p.11). This is described as “the recommended methodology to compare a number of development options in order to find the best balance in carbon emission terms prior to adding other considerations into the planning process”, with “consistent presentation” and “transparency to make the information easier to understand and assess” (p.11). Under the carbon optioneering methodology, you take a 60 year timeline for the different development options under consideration. Each development option has an aggregate whole life-cycle carbon over the 60 years. A dashboard graph depicts the different development options, running horizontally across the 60 year timeline, and running vertically to show the estimated cumulative carbon emissions intensity measured “per square metre” (p.17). A note (p.18) records that in addition to the graph showing carbon emissions data for each option per square metre, the aggregate (“absolute”) carbon emissions values should also be demonstrated for each option by using a table.[44]If you are a planning officer or planning decision-maker you will be able to get several things from the carbon optioneering methodology. Here are three. One piece of information, from the table, is about the overall aggregate carbon which an option will produce over a 60 year period. A second piece of information, from the graph, is about the overall carbon which each option will produce over the 60 year period, when carbon is measured “per square metre”. It is not difficult to see why information “per square metre” may help in thinking about “high density urban environments”, “making best use of the available land”, and trying to “find the best balance in carbon emission terms”. A third piece of information, also from the graph, is about the spread of the increase for each option when seen across a particular time-span. So, for example, if you were focusing on the next decade, you would look at the graph for the first 10 years of the horizontal 60 years.[45]It has not been suggested that the Planning Advice Note, or the optioneering methodology within it, are unlawful or unreasonable. It has been recognised that the Planning Advice Note and optioneering methodology are relevant to policy CS15 paragraph [3], which the Planning Advice Note quotes. When the Claimant made its objections to planning permission on 31.1.24, it provided a consultant’s report by Carney Sweeney (31.1.24) and a consultant’s report by Targeting Zero entitled “Embodied Carbon Review (17.1.24). Within both of these reports was this recognition of the relevance to the Defendant (CoLC) as local planning authority (LPA) of the Planning Advice Note (PAN) in considering paragraph [3] of policy CS15 (demolition avoidance). Both consultants said this (Carney Sweeney at §71, Targeting Zero at §2.5.2): The adopted CoLC Local Plan states in Policy CS15 that demolition should be avoided through the re-use of existing buildings and the CoLC Carbon Options Guidance PAN provides the most recent intermediate position on how this will be considered by the CoLC as LPA…

Whole Life Carbon Assessment 2022

[46]A whole life carbon assessment was conducted for the Interested Party in May 2022, ten months ahead of the publication of the Planning Advice Note. This report assessed two options. One was “retain and extend”, with “retention of elements of the existing buildings” and “part demolition”. The other was “redevelopment”, with “full demolition”. The 2022 whole life carbon assessment gave aggregate and per square metre carbon emissions (p.23). Targeting Zero had written a report for the Claimant (30.8.22) critiquing the 2022 whole life carbon assessment, and this was provided with the Claimant’s planning objections on 5.4.24. Targeting Zero had described the “per square metre” information as giving “the wrong impression” compared to the aggregate amount of carbon (p.4). They had recommended re-examination of “the retrofit option”, including “specifically for ways to reduce the carbon cost in both /m2 rates and in overall terms” (p.5).

The November 2023 documents

[47]When the Interested Party made its application for planning permission on 20.11.23 the documents relied on in support included these, all dated November 2023: a Circular Economy Statement (20 pages); a Whole Life-Cycle Carbon Assessment (17 pages); and a Carbon Optioneering Study (60 pages).

The Carbon Optioneering Study 2023

[48]The Carbon Optioneering Study 2023 was an application of the Planning Advice Note. It was subsequently approved, as a comprehensive methodology and presentation of results, in a third party review by Arcadis (February 2024).[49]The Carbon Optioneering Study 2023 said (p.6) that it was a report which “followed the requirements of” the Planning Advice Note. It had been prepared to provide a qualitative assessment of the existing buildings and a quantitative study of the carbon impact of six development scenarios (p.5) from an original ten options (p.15). The Interested Party’s development proposal was scenario 9. The six options were described as follows. These four were called “RETAIN” options: Scenario 1. Minor Refurbishment which considers interventions to extend the life of the buildings considering the need to adapt the vacant Museum of London spaces and the future regulations that office spaces will need to comply with in the near future. This scenario is considered a short-term solution and a major refurbishment is introduced after 15 years of further operation. Scenario 3a. Major Refurbishment with Extension, retaining the Bastion House building but changing its use to hotel, retaining the former Museum of London for alternative cultural use and proposing a new office building on the Rotunda site. Scenario 3b. Major Refurbishment with Extension, retaining the Bastion House building but changing its use to residential, retaining the former Museum of London building for alternative cultural use and proposing a new office building on the Rotunda site. Scenario 5. Major Redevelopment with Retention, retaining the Bastion House building to be used as a hotel and building a new building on the Rotunda Site, a new building to the North of the site as well as a podium with cultural uses and new public realm. This was called a “DEMOLISH IN PART” option: Scenario 6. Major Refurbishment with Extension, retaining the former Museum of London for alternative cultural use and building a new office building on top of the rotunda site as well as demolishing the Bastion House building to be rebuilt to the same height but with improved floor-to-floor heights. This was called a “DEMOLISH” option: Scenario 9. Full Demolition and New Build which considers full demolition of the site and the erection of two new office buildings, a North building, a cultural podium, and new public realm.[50]The Carbon Optioneering Study 2023 said (p.15) that: Ten scenarios plus a “Do Nothing” baseline have been put forward by the project team considering the possibilities for retention and re-use of the existing buildings. This qualitative exercise established the feasibility of the scenarios for detailed assessment. Hotel and residential uses have been proposed for analysis following the Soft Market exercise organized by the CoL.[51]The Carbon Optioneering Study 2023 explained that there had been a “RETAIN” Option called Scenario 2 but that (p.17):
“This scenario has been integrated to option 1 [Scenario 1] as a major refurbishment is considered necessary to be done to option 1 after 15 years of further operation”
. This exclusion of Scenario 2 as a freestanding option within the optioneering methodology was criticised in the Targeting Zero consultant’s report (17.1.24), which the Claimant provided with its objections (31.1.24). There is no ground for judicial review based on an unlawful, unreasonable or unfair removal of Scenario 2 from the Carbon Optioneering Study 2023.[52]Pausing there, the Officer Report (for 17.4.24) described all of the background and process. It told committee members about the six options which had been assessed in the Carbon Optioneering Study 2023 (OR §1138). It told members about the ten development options which alongside the ‘do nothing’ baseline had previously been identified, explaining that options from that list had been “discounted” from the Carbon Optioneering Study 2023 “in agreement with planning officers” (OR §1108). It told members (OR §1108) what the stated rationale was (see §51 above) for integrating Scenario 2 into Scenario 1.[53]The Carbon Optioneering Study 2023 said this about policy CS15 (p.14) (Part 3 means paragraph [3]): 4.6 City of London City Plan 2015. Core Strategic Policy CS15 of the City of London’s Local Plan (2015) requires all development proposals to develop the highest feasible sustainability standards in the design, construction, operation and ‘end of life’ phases of development. Part 3 of Policy CS15 notes that large-scale demolition should be avoided ‘through the re-use of existing buildings or their main structures, and minimising the disruption to businesses and residents, using sustainably sourced materials and conserving water resources.[54]The Carbon Optioneering Study 2023 expressed conclusions which included this (p.6) (WLC is Whole Life-Cycle Carbon), including reasoning about aggregate and per square metre carbon (underlined here): The analysis concludes that retaining the existing buildings does not achieve the best outcome for this transformative and strategic site, regarding potential floorspace uplift, wider environmental and public benefits, public realm provision and the ability to deliver fit for purpose and leading-edge sustainable buildings. After qualitative and quantitative assessments, scenario 9 was selected as the preferred scenario for development. It is recognised in this report that it will require more carbon spend in absolute terms. However, the carbon investment in these buildings will unlock the greatest amount of strategic and public benefits from the site. The higher WLC impacts will be mitigated by sustainable design as outlined in the WLC Assessment and Circular Economy Assessment. The WLC analysis shows that over a 60+ years operational cycle the total carbon is lower for scenario 9 on a per m2 basis. Scenarios 3a, 3b, 5 and 6 do not optimise the development potential of this site and do not achieve the wider benefits that a full redevelopment can deliver.

The Soft Market Exercise

[55]I have explained that the Carbon Optioneering Study 2023 stated that “Hotel and residential uses have been proposed for analysis following the Soft Market exercise organised by the CoL” (see §50 above). That is a reference to a tendering exercise conducted by the Interested Party as public authority landowner on 3.4.23. This was described at §20 of the Carney Sweeney report (31.1.24), provided with the Claimant’s objections (31.1.24). Carney Sweeney said:
“Whilst the results of this tender have not been publicly reported, Chris Hayward (Chairman of the Policy and Resources Committee at CoLC) stated at the City Question Time event held on 15 June 2023 that the CoLC had received expressions of interest that were considered to be credible (albeit commercially confidential)”
. A letter from the Claimant dated 22.11.23 to the Interested Party, supplied with the planning objections (31.1.24), had complained of the lack of transparency in the secrecy of the process, asking for the results.

Fresh evidence

[56]A key argument made under the third ground for judicial review is that planning officers acted unreasonably in failing to make further enquiry as to the product of the April 2023 Soft Market Exercise. In support of that claim, documents relating to the exercise have been disclosed in these proceedings by the Interested Party and placed before the Court. They are fresh evidence, because they were not before the Defendant’s planning officers or its planning committee. Counsel were agreed that the basis for admissibility of this evidence in judicial review is as material which a claimant says is material which reasonably could have been available to a defendant if appropriate enquiries had been made (see eg. R (JA) v London Borough of Bexley [2019] EWHC 130 (Admin) at §48).[57]One disclosed document is an 11-page unpublished report to two committees of the Interested Party which met on 21.9.23 and 22.9.23 at non-public meetings. The unpublished September 2023 report had included this (§11b): The Soft Market Testing exercise has resulted in interest from some developers who have provided details of concept schemes, notably for partial or full retrofit/refurbishment of Bastion House. The developers who have put forward highly caveated concept retrofit and cut and carve schemes have successful track records for delivering such schemes and therefore on the face of it are credible. There are further risks that these schemes could be made public via the promotors and/or could form a material consideration in the planning determination as potential viable alternatives to demolition.[58]Later in the report (§11d) there is a description of the Claimant and its opposition, and the observation that the Interested Party as landowner would be likely to be accused of ignoring the Soft Market Testing. There was an appendix to the report (pp.10-11) which lists 7 responses to the Soft Market Testing. Among them is a hotel option involving the retention of Bastion House and the Rotunda. Also among them is another hotel option involving retention of Bastion House but demolition of the Rotunda. That report was not published until being disclosed in these proceedings.[59]Other disclosed documents were the responses to the Soft Market Exercise, from which pictures and figures have been redacted. No issue was pursued as to the appropriateness of the redactions. No argument was mounted to try to demonstrate that these response documents would have undermined as unlawful or unreasonable the removal of Scenario 2 from the 6 options assessed in the Carbon Optioneering Study 2023. No argument was mounted to try and demonstrate that these response documents would have led a planning officer to identify an alternative development proposal as a material planning consideration applying the principles in Mount Cook (see §38 above).

The Claimant’s argument on the second ground

[60]I have explained that the second ground for judicial review is that the Defendant misunderstood and/or failed to apply Local Plan Policy CS15; and/or gave legally inadequate reasons. This was the essence of the Claimant’s argument, as I saw it: i) Policy CS15 by paragraph [3] clearly and expressly identifies demolition as a negative in planning terms, with a policy backing. It does not use the word “presumption”. But it does, in substance, constitute a presumption against demolition. The label is not what matters. The label can be “presumption” or “expectation”. It can equally be described as a “proposition” that indicates refusal of planning permission if it is not overbalanced by other considerations, counting as a “negative factor with the force of policy behind it” which will go against the proposal as “a material consideration”: cf. R (Asda Stores Ltd) v Leeds City Council [2021] EWCA Civ 32 [2021] PTSR 1382 at §41. It can be described as a suggestion or direction of a refusal if certain conditions are not met: cf. Marks & Spencer Plc v Secretary of State for Levelling Up Housing and Communities [2024] EWHC 452 (Admin) [2024] JPL 1114 at §57. What matters is the substance. ii) The fact that other paragraphs within CS15 deal with other points, relating to “development” or “redevelopment”, does not detract from freestanding paragraph [3]. The point arising from paragraph [3] is about whether there should be rebuilding at all, and it is not met by whether rebuilding meets particular standards. This is in substance a presumption, from a paragraph within CS15, in exactly the same way as the Court in Addison v London Borough of Southwark [2022] EWHC 3211 (Admin) at §51 identified a “presumption” against the loss of sports facilities in one “limb” of the policy there, the text of which also did not use the word presumption (see Addison at §48). iii) The objectively correct interpretation of the policy is a question for the Court, reviewable on a correctness standard. The legally correct interpretation of this policy is that CS15 is saying that demolition is to be avoided, unless it can be outweighed by counterbalancing considerations. Throughout the Officer Report, again in an Officer Report Second Addendum, and again in advice recorded in the minutes of the meeting, there was a complete failure to recognise the objectively correct meaning of this straightforward provision. That was a material misinterpretation on the part of planning officers. At no stage did planning officers squarely tell committee members that CS15 is a policy which sets its face against demolition, so that demolition conflicts with the policy; or at very least that demolition has a demerit in planning policy terms, which is backed by policy, and which needs to be counterbalanced. It follows that officers gave advice to the members which was Mansell seriously misleading, misleading in a material way, because it plainly misdirected members as to the meaning of a relevant policy. When, at the meeting itself, the officer said to members that the emerging city plan did not include a “presumption against demolition”, and then said that policy CS15 “was about avoiding demolition” but had to be understood in the wider context, that was a straightforward misdirection in law, based on a misinterpretation of the policy. iv) The Officer Report repeatedly asserted that there was “compliance” with policy CS15. But what committee members should have been told was that there was “conflict”. This redevelopment involved demolition. Indeed, it involved maximum demolition, and zero retention of existing buildings. Members needed to be told that there was a conflict with CS15, not a compliance with it. Officers needed to identify whether there was compliance with the development plan, in a way that left no reasonable doubt. That meant telling members that there was a conflict because of the demolition, and leaving no reasonable doubt about there being that conflict. There could be no compliance with CS15 unless the presumption or expectation against demolition was explicitly acknowledged, unless all negatives were considered including minimising disruption to businesses and residents, using sustainably sourced materials and conserving water resources (see CS15 paragraph [3] itself); so that all of the relevant negatives were then weighed against any relevant positives. That was required, in order to give cogent reasons for the assertions of compatibility, rather than conflict, with CS15. The avoidance of demolition was mentioned only once within the Officer Report, and then only in listing points made by the Claimant in its objections, while promising to address them in the sustainability chapter. The reasons needed to grapple with demolition as a planning policy negative, to acknowledge an expectation against demolition, to weigh all negatives against any positives, before coming to any overall conclusion. v) None of this was done within the reasoning in the OR. Instead, there was a focus on other paragraphs within CS15, and on supposed virtues from a carbon perspective of ways of carrying out rebuilding. The reasons in the OR asserted overall compliance without grappling with the demolition point. The reasons focused on the Carbon Optioneering Study, the options addressing that exercise, and the aggregate carbon production from those assessed options, in particular assessed per square metre rather than in aggregate. The conclusion at OR §1187 was one of overall compliance which did not address the demolition point. The conclusions at OR §1188 arose from the Carbon Optioneering Study, carbon production and the per square metre result which was simply treated as satisfying policy CS15. The Officers’ Second Addendum report addressed a question about alternatives without any reference to the planning policy virtues of alternatives which avoid demolition. The answer given to a question, recorded in the minutes of the meeting, acknowledged avoiding demolition but then spoke about the wider policy context and the carbon options planning guidance note. vi) It follows on the basis of all of this that there has been misinterpretation of the policy; that the officer report to members was materially misleading; and that there has been a wholesale failure to give legally adequate reasons in the application of the policy.

The Claimant’s argument on the third ground

[61]I have explained that the third ground for judicial review is that the Defendant failed to conduct adequate enquiries and/or deal appropriately with alternative schemes. This ground begins with Policy CS15 but then relies on legal insufficiency of enquiry independently of that Policy. Here is the essence of the Claimant’s argument, as I saw it: i) Viewed against policy CS15, and the planning policy virtues of avoiding demolition in paragraph [3], it was particularly important that full consideration was being given to alternatives which eliminated demolition or reduced the extent of demolition. The need to consider sustainability and avoid demolition made it particularly important that planning officers ensured that they and committee members had a reasonable sufficiency of information, based on a reasonable adequacy of enquiry. ii) That was, throughout, an obviously key feature of the planning decision-making process. But it was straightforwardly raised, both in the Claimant’s objections making points about the Soft Market Exercise, and in the specific question addressed in the Second Addendum. Planning officers had, throughout, the perfect opportunity to ask questions of the interested party about the Interested Party’s Soft Market Exercise, and the responses which had been elicited to that exercise. Officers failed to take that elementary step. They did not take it when ten options were reduced down to six (see §49 above). They did not take it when Targeting Zero criticised the removal of Scenario 2 (see §51 above). They did not take it for the purposes of preparing the Officer Report, to ensure that members were properly informed. And they did not even take it when the question was raised to which the Second Addendum responded (see §60v above). iii) This was a straightforward breach, throughout, of the basic Balajigari principles of reasonably sufficient enquiry (see §37 above). No reasonable authority possessed of the material about alternative options, but knowing of the existence of the Soft Market Exercise, could suppose that the enquiries that they had made were sufficient.

Discussion of the second and third grounds

[62]I have been unable to accept these submissions. In my judgment, neither of the second or third grounds for judicial review has been established. I am able to explain, by reference to a series of key points, why. They explain why I have rejected the Claimant’s submissions. They explain why key submissions made by Mr Cameron KC and Mr Warren KC, reflected in the analysis that follows below, decisively answer the claim on both grounds. The key points are as follows.[63]I am unable to accept that the objectively correct legal interpretation of policy CS15 involves, in substance, a presumption or expectation against demolition. I am also unable to accept the related contention that, correctly interpreted, demolition means “conflict” with, rather than “compliance” with, policy CS15. It is recorded in the minutes of the committee meeting on 17.4.24 that Ms Dehon KC who appeared and spoke on behalf of the Claimant told members that Local Plan policy CS15 applies “a presumption against demolition” which had been “ignored”. But I do not think that was correct in law.[64]As is minuted later at the meeting, a planning officer responded to a question about a “retrofit-first policy”. The officer observed that policy CS15 was “about avoiding demolition” but that this had to be understood in the wider context of the policy and the plan as a whole, including detailed redevelopment proposals and the need for meeting quality and quantity of new development, that what was needed was to robustly explore retention and to seek the most suitable and sustainable approach. In my judgment, there was no error of law in that description. This is not a case where the Mansell principles (see §36 above) were contravened. This is not a case where officers plainly misdirected the members as to the meaning of a relevant policy.[65]It is open to the drafters of a policy within a development plan to lay down what is in substance a presumption, whether against demolition, on in favour of or against something else. The word presumption may be used. Or the policy may use other language. What matters is substance, not lexicon or label. Such a presumption can, in principle, be found in a “limb” within a policy (see Addison).[66]What the drafters of CS15 did was to list five identified ways (paragraphs (1) to (5)) of doing something: creating a more sustainable City, adapted to the changing climate. That was doing something so as to achieve something: enabling businesses and residents to make sustainable choices in their daily activities. The five identified ways – of doing this something so as to achieve this something – were about requiring, or avoiding, or incorporating. They were about development, redevelopment, retention (avoiding demolition). They were about design, construction and operation. They were about carbon emissions. They were about avoiding demolition (retaining buildings). They were about air-quality, quiet areas, light, water, contamination and conservation. They were about climate change adaptation. All as best ways of creating a more sustainable City, adapted to the changing climate; so as best to enable businesses and residents to make sustainable choices in their daily activities. All as a “strategic” policy. All linked to a “strategic objective” concerned with the sustainability challenges of high density urban environments. All in the context of making best use of available land. CS15 paragraph [3] cannot be carved out from all of this as if it stood alone. Paragraph [3], and CS15, need to be interpreted within this strategic policy setting. Read and interpreted straightforwardly as a whole, and in context, CS15 calls for an integrated application of a set of features to arrive at an overall conclusion of conflict or compliance. The avoidance of demolition is one recognisable way of achieving the purposes of sustainability. The planning decision-maker, and those who advise the planning decision-maker, will need to make evaluative judgments, in which considerations are weighed and evaluated, to identify what is best in terms of sustainability and climate change in the context of a more sustainable city making best use of available land and the challenges facing high-density urban environments. None of that engages a hard edged question of interpretation. It is entirely open to a planning decision-maker and those who are advising it to conclude that the balance of considerations identified within CS15, in light of its express enabling purpose, and viewed in its policy context, involve no conflict with policy CS15 at all, even though there is demolition and the associated disruption. Demolition does not, in and of itself, necessarily constitute a conflict with this policy.[67]There is a practical way to test all of this. The Planning Advice Note contains at p.8 an express acknowledgment of CS15 paragraph [3] (see §43 above). The Carbon Optioneering Study 2023, which applied the Planning Advice Note and was third party reviewed for applying the Planning Advice Note, also contains an express acknowledgment of CS15 paragraph [3] (see §53 above). They reflect the insight that what is called for is a robust consideration of alternative options, including retention (demolition avoidance) options. The optioneering methodology within the Planning Advice Note, and within the Carbon Optioneering Study 2023, is not in conflict with CS15 paragraph [3]. It is, rather, a tool within an integration application of paragraph [3] and the rest of CS15. That was recognised by Carney Sweeney and Targeting Zero (see §45 above). Retention options – and retention is another word for demolition avoidance – can be assessed against demolition options. All to consider an important aspect of sustainability – carbon – in the quest to find the best use of the available land in a high density urban environment. It has not been suggested, rightly in my judgment, that the Planning Advice Note methodology was unlawful or unreasonable; nor that the way in which that methodology was applied in the Carbon Optioneering Study 2023 was unlawful, unreasonable or unfair.[68]Officers’ overall conclusion was that the proposals “would comply with the development plan when considered as a whole” (OR §1252). In light of the direct application of the methodology in the published Policy Guidance Note, the wider considerations including the other features of policy CS15 itself such as the achievement of the CS15 paragraph [1] outstanding BREEAM rating, the evaluative judgment of the planning officers was that the Interested Party’s redevelopment proposal was “in overall compliance” with policy CS15 (OR §1187). This position was clearly communicated to committee members. It was communicated within a report which had earlier given them clear and detailed information as to the evaluative process that had led to the conclusions being expressed. The conclusion as to sustainability identified sustainability actions that were most relevant, and identified what local plan policies required of redevelopment (at OR §1186). The assessment of options was described, confirming that it had been carried out in accordance with the Planning Advice Note (OR §1187). Members were reminded that six options had been considered, and advised that the Interested Party’s development “resulted in the lowest whole life-cycle carbon emissions per square metre”, out of “the 6 options that considered a variation of retention and use scenarios”, while “providing the best long term solution for the successful integration of the site into the City, through connectivity, urban design and ultimately future proofing with high levels of urban greening, climate resilience, flexibility and diversity of use” (OR §1188). Members were reminded that the development had the “highest level of overall whole life-cycle carbon emissions due to its largest size” (OR §1188). They were advised about the virtues of the “whole life-cycle carbon performance”, the “strategy to achieve maximum flexibility, adaptability and material optimisation” and the “building design [which] responds well to climate change resilience by reducing solar gain, saving water resources and significant opportunities for urban greening and biodiversity” (OR §1188).[69]This was a clear reasoned focus on sustainability considerations, in the context of having robustly analysed alternative scenarios, including “retention and use scenarios”, which is exactly the same thing as demolition avoidance scenarios. It involved considering the carbon picture. It involved the different aggregate and per square metre ways of looking at the carbon picture. And it explained by reference to the carbon options evaluative exercise, and the broader sustainability considerations, why this was considered best in sustainability terms. That was clear and straightforward reasoning providing members with an adequate explanation of the positive overall conclusion that had been reached in relation to CS15. There was, in my judgment, nothing Mansell misleading in a material way, no failure to deal with the matter on which the committee ought to have received explicit advice, and no distinct and material defect. I find it impossible to conclude that this reasoning involved any public law inadequacy.[70]It is unnecessary for me to summarise the entirety of the detail which preceded the sustainability policy conclusions. But it is right to record the following. The earlier parts of the sustainability chapter of the Officer Report referenced policy CS15 (OR §1096). They described the consideration of whether there was an opportunity to retain and refurbish any of the buildings: ie. demolition avoidance (OR §1097). There was a specific discussion of the implications of retention of the buildings (OR §1103). There was a description of the opportunities for the use of all demolition materials (OR §1105). There was the detailed description of the Carbon Optioneering Study 2023 (OR §§1106-1114). There was a description of the options that had been considered at the different stages, in an exercise designed to establish the potential of retention with particular focus on retention opportunities for Bastion House and the Rotunda (OR §1107). There was the discussion of the options that were “discounted in agreement with planning officers” (see §52 above) including the integration of old Scenario 2 (OR §1108). There was a detailed description: of the six options (OR §1109), the conclusion of technical feasibility of retention of parts of a building (ie. demolition avoidance) (OR §1110), the robust exploration of options (OR §1112), and reference to the highest aggregate carbon emissions (OR §1113), put alongside the benefits. In a further separate section, the OR had told members about the whole life-cycle carbon emissions (OR §§1136-1164). This was a 9-page discussion of the application of the published Planning Advice Note. There was a listing of the 6 options (OR §1138), including the one which involved retention (ie. demolition avoidance) of Bastion House and change of use to a hotel (Scenario 5); and one involving the retention (ie. demolition avoidance) of the Rotunda with extension (Scenario 6). There was the optioneering graph (OR §1139) showing the 6 options plotted in terms of carbon emissions, over the 60 year timeline, per square metre. There was a discussion involving all three pieces of information (see §44 above): “upfront” carbon levels (ie. the first part of the timeline); per square metre carbon levels; and aggregate (“absolute”) carbon levels (OR §§1143, 1145). There was a further recognition of retention (ie. demolition avoidance) of Bastion House (OR §1148) and then a discussion culminating in an explanation (OR §1164): that the methodology of the published Planning Advice Note had been followed, that an independent third-party review had confirmed that carbon emissions had been set out and calculated in accordance with that Planning Advice Note and that this, alongside the demonstration of the opportunities of the proposal and the proposed actions to reduce carbon emissions significantly, produced “compliance” with policy CS15. Again, I have found it impossible to conclude that this reasoning involved any public law inadequacy.[71]The Officer Report Second Addendum raised and answered a specific question, raised ahead of the meeting. The question was clearly identified to be about whether an alternative scheme or alternative schemes to develop the application site or part of the development site was a “material consideration” to be taken into account when determining the application. That question engaged the principles described in Mount Cook (see §38 above). The Second Addendum report answered that question. There was no error of law in that advice, viewed against those principles. Nor has the Claimant suggested that there is. There was no Mansell misdirection or advice which was misleading in a material way or distinct material defect. Nothing said was jettisoning the distinct points made within the main body of the OR about the assessment of options from the perspective of sustainability. Conversely, nothing in the discussion of sustainability in the OR, or at the meeting, involved removing any option on the basis of it being inchoate or vague.[72]The position was reinforced for members at the meeting. The 14-page minutes of the meeting include the following: i) The Claimant, through Ms Dehon KC, were able to make key criticisms: that a CS15 presumption against demolition had been ignored; that retention (retrofit) alternatives had been ignored; that the aggregate carbon emissions were the highest; that there were the carbon emissions within the short term; that Scenario 2 had been removed from the Carbon Optioneering Study 2023. This is on pp.3-5. ii) The Interested Party’s consultant (Anna Woodeson from Buro Happold) explained the Carbon Optioneering process to members, how options had been evaluated through that methodology, and the conclusions reached. This is on p.10. iii) Two officers responded to a question asking them to outline how they came to recommend approval for a non-refurbishment scheme given the retrofit first policy. The first officer spoke of the need robustly to explore retention and seek the most suitable and sustainable approach; that CS15 was “about avoiding demolition” but “this had to be understood in the wider context of the policy and plan as a whole”, referring to the “quality and quantity of the new development” and the fact that the scheme had “gone through [the optioneering] process” in accordance with the 2023 guidance. The second officer described the robust assessment of the 6 options, the third-party review by an independent reviewer, the outcome acknowledging the potential to retain Bastion House (ie. demolition avoidance), but then then the wider context and wider sustainability considerations which have been assessed to provide the most benefits. This is on p.13. iv) There was then a specific question about carbon impact and an officer explained that the square metre figure for redevelopment was the lowest of all the options and was used to assess compliance with Greater London Authority policies and benchmarks. This is on pp.13-14. v) I was able to detect nothing in what officers said, or did not say, on these points which was Mansell misleading in a material way, no failure to deal with the matter on which the committee ought to have received explicit advice, no distinct and material defect, and no legal inadequacy of reasons.[73]For these reasons, the second ground for judicial review fails. That leaves the distinct question under the third ground for judicial review, as to whether there was a failure of legally adequate enquiry applying Balajigari (see §37 above). This ground fails too. Here is why. i) The Officer Report shows that officers who were writing that report for members were well aware of the original two options (see §46 above), and well aware of the ten options and finally the six options (see §49 above). It records that there had been an “agreement with officers” about the ten options being reduced to six (§52 above). Officers told committee members about all of this. ii) There is no basis on which I can conclude that the public law duty of reasonableness entails that the Carbon Optioneering Study 2023 should have provoked from planning officers a request for further detail about the product of the Soft Market Exercise. Indeed, the Carbon Optioneering Study 2023 was explicit about having included hotel and residential Scenarios because of what had been learned in the Soft Market Exercise (see §50 above). iii) I have been shown nothing else – whether in the context of optioneering or policy CS15, or by reference to what the Claimant’s objections said about the Soft Market Exercise – which could lead me to conclude that no reasonable planning authority, possessed with material available, could suppose that the enquiries it had made were sufficient. iv) Nor is there any basis on which I can conclude that the public law duty of reasonableness required further enquiry from the perspective of the Mount Cook principles (§38 above). That includes when, in the run up to the meeting, the question was raised about an alternative development proposal as a material planning consideration (see §71 above). v) These points are fatal to the third ground for judicial review. But I add this. I was not shown how the fresh evidence in the form of the disclosed documents from the Soft Market Exercise (§§56-59 above) could have had any traction from the perspective of the application of policy CS15, or the Carbon Optioneering Study 2023, or in applying the Mount Cook principles, or anything else. Materiality is a general theme in the identification of public law errors, when it is said that a decision is vitiated in law and should be quashed. Accepting the admissibility of the fresh evidence (§56 above), it did not in my judgment assist the Claimant in showing that there was here any point of substance which a further enquiry would have elicited.

IV. CONCLUSION

[74]For these reasons, the claim for judicial review is dismissed. Having circulated this judgment as a confidential draft, the parties were agreed as to the appropriate terms of the order which is:(1) The claim for judicial review is dismissed.(2) The Claimant is to pay the Defendant’s costs summarily assessed in the sum of £10,000.