Background
Code Students sought permission to judicially review Nottingham City Council’s approval of the Guildhall Scheme, a development comprising the restoration and conversion of Grade II-listed former police and fire station buildings and a new 18-storey tower providing student accommodation. Code Students had separately proposed a much larger scheme of two towers containing 1,252 studios, which the Council refused; its appeal against that refusal remained pending.
After permission was refused on the papers, Code Students renewed its application orally. It advanced five grounds concerning the Council’s failure to publish background documents, allegedly inconsistent treatment of the two schemes, listed-building duties, alleged failures to consider material matters, and reliance on a landscaping condition to address wind effects.
The Court’s Holding
Mrs Justice O’Farrell refused permission for judicial review because none of the five grounds disclosed an arguable public-law error with a realistic prospect of success. Although the Council had breached section 100D of the Local Government Act 1972 by failing to publish certain background documents before granting permission, Code Students had not arguably suffered prejudice, and it was highly likely that timely publication would not have produced a substantially different outcome. The relevant matters had been summarized in the officer’s report, and Code Students had not objected to the Guildhall Scheme on its merits.
The Court held that the Council was entitled to treat the developments differently because they differed materially in scale, design, accommodation mix, heritage context, servicing requirements, wind and noise effects, and objections received. The officer’s report properly addressed listed-building duties and the strong presumption against harmful development, while the other challenged matters either were considered or did not arise as material considerations for the Guildhall Scheme. The landscaping condition reflected an unarguable exercise of planning judgment supported by the wind assessment.
The Court rejected the interested party’s standing objection. Code Students had a sufficient interest as a proposed developer of purpose-built student accommodation in Nottingham with a legitimate concern that competing developments be assessed on a level playing field, even though the claim was also intended to assist its separate planning appeal.
Key Takeaways
- A council’s failure to publish background papers under section 100D does not automatically invalidate its planning decision; the consequences depend on prejudice and whether compliance could have materially affected the outcome.
- Consistency principles do not require planning authorities to treat materially different developments alike or explain departures where the earlier proposal is distinguishable.
- A commercial competitor may have standing to challenge a planning decision where it has a genuine interest in lawful and even-handed decision-making, despite also seeking an advantage in separate proceedings.
Why It Matters
The decision illustrates the demanding role of causation and prejudice at the permission stage of planning judicial review. Even an admitted statutory procedural breach will not justify permission where the claimant could already identify the relevant issues and the decision was highly likely to remain unchanged.
It also confirms the latitude afforded to planning authorities when comparing developments with different site conditions, designs, scales, and heritage effects. Courts will not recast disagreements with evaluative planning judgments as public-law errors without an identifiable flaw in the decision-making process.