Council student accommodation decision could be “vulnerable” to judicial review, Barrister letter warns

The local authority is set to approve plans, based on officers' recommendations, for a set of tower blocks to accommodate up to 400 students.

Members have now discussed the controversial scheme at three separate planning committee meetings in January, March, and this week.

In March, the committee resolved to approve the application, subject to debating three planning conditions at a future meeting, alongside further legal advice on healthcare contributions.

These concerned securing adherence to the applicant’s commercial strategy, school mitigation measures, and affordable housing delivery phasing.

On Wednesday the authority's planning committee voted to approve the new conditions, marking another step towards building the development.

The decision came just two days after a letter written by Simon Bell of Cornerstone Barristers claimed that, despite the committee discussions, "key matters have not been satisfactorily resolved" and that any decision to grant permission "would be vulnerable to challenge by way of judicial review".

Writing on behalf of a group of local residents and before Wednesday's committee discussion, Bell noted that the application is proposed for approval despite acknowledged heritage harm "where the reasoning as to justification and the application of the required weight remain open to question".

In addition it argued the council had failed to sufficiently explain how the application would mitigate against additional healthcare demand, which had been flagged by an NHS Integrated Care Board.

It also contended that the committee was being asked to approve the development while the terms of the section 106 agreement remain unsettled, and that members were being asked to approve the application despite the approach to securing affordable housing remaining "unresolved".

Elsewhere, it noted that discussions about appeal risk and potential costs in the event the application is rejected had "featured prominently" in committee discussions.

On this point, it added: "The recording of the March meeting shows that members expressly articulated that their voting position was influenced by the perceived likelihood of an appeal
and the risk of a substantial costs award. Members adopted a “reluctant approval” position for that reason.

"In accordance with R (Miles) v Tonbridge and Malling BC [2020] EWHC 1608 (Admin), such considerations are not material planning considerations and must not influence the exercise of planning judgment. On the evidence, they did so here."

Each of the issues raised in the letter "gives rise to a potential ground for judicial review should a grant of permission be issued", the letter added.

It continued: "Given the importance of this proposed development and the adverse impact it would have on the local area, my clients are prepared to bring such a claim if needs be.

Should such a claim be successful, then they will seek to recover their costs from the Local Planning Authority.

“In those circumstances, my clients respectfully invite Members to reconsider the position at the forthcoming meeting, and in particular to consider whether it is appropriate to grant permission at this stage.”

Adam Carey