R (John Watson) v London Borough of Richmond upon Thames

Transcript date:

Wednesday, May 15, 2013

Matter:

Court:

Court of Appeal

Judgement type:

Substantive Appeal

Judge(s):

Lord Justice Maurice Kay, Lord Justice Richards and Lord Justice Pitchford

Transcript file:

Neutral Citation Number: [2013] EWCA Civ 513

Case No: C1/2013/0094
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge McKenna
[2012] EWHC 3881 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/05/2013
Before :

LORD JUSTICE MAURICE KAY
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RICHARDS
and
LORD JUSTICE PITCHFORD
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Between :

The Queen (on the application of John Phillip Watson) Claimant/ Appellant
- and -

London Borough of Richmond upon Thames

- and -

Solum Regeneration Limited Defendant/1st Respondent

Interested Party/2nd Respondent

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Douglas Edwards QC (instructed by Richard Buxton Solicitors) for the Appellant
Rupert Warren QC (instructed by Merton and Richmond Legal Services) for the First Respondent
Neil Cameron QC (instructed by Eversheds LLP) for the Second Respondent

Hearing date : 30 April 2013
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Approved Judgment

Lord Justice Richards :

1. This appeal concerns the grant of planning permission for the redevelopment of Twickenham Railway Station. The permission was granted on 30 March 2012 by the local planning authority, London Borough of Richmond upon Thames ("the Council"), on the application of Solum Regeneration Limited ("Solum"). The appellant is a resident of Twickenham and a member of the Twickenham Residents Action Group ("TRAG"), which objected to the planning application. The appeal is against an order of HHJ McKenna, sitting as a deputy High Court Judge, by which he dismissed the appellant's claim for judicial review of the grant.

2. Permission to appeal was given by Sullivan LJ on a single ground relating to a report submitted to the Council by an advisory body, the Twickenham Advisory Panel ("TAP"), on the proposed development. In reaching their decision on the grant of planning permission, members of the planning committee proceeded on the basis of advice by officers that the report was not material to their consideration of the application. The question is whether that amounted to a failure to have regard to a material consideration and, if so, whether it should lead to the quashing of the planning permission.

The factual background

3. The proposed development involved demolition of the existing station building and access gantries to the platforms, a phase 1 redevelopment including erection of a podium (or concrete raft) over the railway lines, and a phase 2 redevelopment including:

"A new station concourse with stair and lifts to platform level; three buildings ranging in height between 7 storeys and 2 storeys (where measured from London Road Bridge) comprising 115 residential units, 734 sq.m of flexible Use Class A1 (shops), A2 (financial and professional services) and A3 (restaurant and cafe) floorspace ...."

4. The proposal was the subject of a favourable officers' report. The summary within the main report included the following general description of the perceived benefits:

"The proposed development provides an opportunity to redevelop the area of Twickenham Railway Station providing some key improvements to the station itself benefiting residents, employees of the borough, visitors and rugby/concert crowds, these being:

• A modern new station entrance and ticket hall sited closer to the town centre.
• Lifts from the ticket hall to all platforms.
• Significant improvements to the platform environment including improved facilities and a new secondary over-bridge ....

Insofar as improvements to the immediate area surrounding the station, the following are secured through this development:

• Improved public transport interchange facilities with lifts to a new taxi rank, car park and drop off area.
• An increase in and improved commuter cycle facilities.
• A riverside walk linking the site and the town centre to Moormead Park.
• A public plaza in front of the station entrance bordered by a new bus stop on London Road and complimentary [sic] shops and cafes.
• Ecology improvements to the River Crane environment both on and off site.

It is considered that the redevelopment of the station and its immediate environment would provide a catalyst for the regeneration of the northern approach into the town centre benefiting Twickenham as a whole particularly as a gateway to the town and to Twickenham Stadium."

5. There were, however, a number of contentious issues, including an issue concerning the height of the proposed development. The Development Management Plan adopted by the local planning authority in November 2011 included Policy DM DC3 on "Taller Buildings", which provided, so far as material:

"Taller Buildings will be inappropriate in all areas of the borough except the identified areas within Twickenham and Richmond ..... Proposals for taller buildings within these areas will need to:

• be well designed and to make a positive contribution towards the skyline and the surrounding area;
...
• respect the local context and character and to be designed in a way that relates to the scale, height, mass, urban pattern and grain, materials, streetscape, open spaces and built form of an area ...;
...
• buildings will require a full design justification based on a thorough townscape appraisal and historic area assessment ....

Twickenham (Supplementary Policy Document published with detailed design guidance):

• On the station - buildings up to 4/5 storeys at the highest point and should step down to 2/3 storeys towards Cole Park Road;
...
Any buildings or features taller than the above will only be acceptable subject to a full design justification based on a comprehensive townscape appraisal and there being significant local community support for the public benefits of the overall scheme."

6. The proposed development exceeded the height limit set out in that policy. But the proviso contained in the last paragraph of the policy is important. A comprehensive townscape appraisal setting out a full design justification was provided as part of the application documentation, and the officers' report stated that the design and architectural approach, including the height of the buildings, was acceptable. It is apparent from the reasons for the grant of planning permission, referred to below, that the planning committee accepted that assessment and also took the view that there was significant local community support for the public benefits of the overall scheme.

7. Solum argued that the amount of development proposed, including the height of the buildings, was necessary in order to make the overall scheme viable, in particular to fund the raft over the railway lines. The point was explained in this way in the officers' summary:

"... The heights of the buildings exceed the requirements set out in local policy however they are considered to provide a suitable transition between the height of Regal House and the recently erected hotel and the two storey houses in Cole Park Road with a mass that is broken into three blocks where the articulation and geometry is such that the scale and mass is considered to be suitable in the context of a town centre location and providing a gateway into Twickenham.

A key component of the development is the erection of a raft over the railway tracks which would allow the provision of the station entrance direct and closer to the platforms, closer to the town centre and would provide a public plaza in front of it.

...

The applicant has demonstrated with a financial viability study that has been independently verified that subject to the build costs being as predicted (including the raft) the level of enabling development needs to be as proposed (115 residential units and 734 sq m of retail space). Whilst the building heights exceed those set out in Policy DM DC3 and the relevant SPD [Supplementary Planning Document] and no affordable housing is provided the securing of substantial rail investment and improvements as described are considered by officers to be of greater planning benefit to the revitalisation of Twickenham town centre in accordance with Core Strategy Policy CP9 and the UDP Proposal Site (T17)."

8. TRAG objected to the proposed development, in particular in respect of height. It commissioned an architectural practice to prepare an alternative proposal aimed at delivering the proposed benefits of Solum's scheme, with sufficient enabling development to render the scheme viable, but without exceeding the height limits in Policy DM DC3. That alternative proposal, referred to as Plan B, was submitted as part of TRAG's objection and was examined in an addendum to the officers' report.

9. The nature and remit of TAP, the details of its report and the circumstances surrounding submission of that report to the Council are considered in the next section. It suffices at this stage to note that the report was submitted on 9 December 2011. This was the same date as that on which the officers' main report to the planning committee was published. The officers' report included reference to TAP in the section on "Public and Other Representations", but it merely stated: "no comments received at the time of writing". The first addendum to the officers' report, published on 16 December, then dealt with the TAP report as follows:

"Members will be aware that the Twickenham Advisory Panel have reported their findings of the application to the Leader of the council (Lord True) on the back of the public event held in July 2011.

This response has not been submitted against the planning application or formally to planning officers and as such the comments therein are not considered material to the consideration of this application."

10. The planning committee met on 19 December 2011 to consider Solum's application. Members of the committee had before them the officers' main report, extending to 130 pages and containing a recommendation that permission be granted on specified conditions and subject to the completion of a section 106 agreement and the absence of an adverse direction from the Greater London Authority. They also had before them the first addendum to the report, together with a second addendum, published on 19 December. That material was introduced by one of the officers. Representations from various interested parties were heard. The minutes of the meeting record:

"The Committee considered the information provided by officers and the points raised by speakers. Members considered the merits of the scheme and balanced this against the perceived disadvantages of the proposal. Members discussed the design of the scheme and the height of the buildings, considering whether departure from the Council's Development Management Plan and Supplementary Planning Guidance be justified in the context of the provision of enhanced station facilities and new public realm. The Committee considered the lack of provision of affordable housing and whether this was acceptable in the context of the viability study and section 106 financial obligations that were proposed.

The Committee considered the impact on the street scene and neighbouring amenity in the vicinity of the site, and in particular whether the height and scale of the proposal would create a sense of enclosure for the residents of Mary's Terrace. It was recognised that there were disadvantages to the scheme, but Members considered that the benefits of the scheme outweighed the potential harm, and that the conditions secured would mitigate the harm ...."

The committee resolved that the application be approved in accordance with the officers' recommendation, subject to minor amendments.

11. The Greater London Authority did not intervene, and a section 106 agreement was duly completed. Planning permission was then formally granted on 30 March 2012. The statement of reasons accompanying the grant included the following:

"The proposal has been considered in the light of the Development Plan, comments from the GLA and other statutory consultees and third parties (where relevant), the National Planning Policy Framework and compliance with Supplementary Planning Guidance as appropriate. It has been concluded that the proposal accords overall with the Development Plan and where there are material non-compliances, the determination has considered that other overriding planning considerations should be attached greater importance. It is hence considered that the proposal accords with Section 38(6) of the Planning and Compulsory Purchase Act 2004.

The main planning benefits of the scheme including the provision of a modern, accessible railway station, improved interchange facilities and new public space would provide a catalyst for the regeneration of the northern approach to the town centre and an improved facility serving the local rugby stadia, specifically the RFU stadium for the Rugby World Cup in 2015. These significant benefits of which there is local community support have been carefully considered, balanced and found to outweigh the key material non-compliances of the scheme which are the non-provision of affordable housing, the building heights exceeding SPD and the impact on certain elements of the community infrastructure and facilities in Twickenham.

...

The proposal has been submitted with a comprehensive townscape appraisal setting out the design justification as required by Policy DM DC3. In this respect the design and architectural approach is considered acceptable providing a sustainable development of modern buildings to the London Road frontage and a building of more traditional appearance and scale fronting the River Crane and Cole Park Road. The heights of the buildings exceed the requirements set out in Policy DM DC3. However they are considered to provide a suitable transition between the commercial building forms and heights of Regal House and the Travel Lodge hotel on London Road and the two storey houses found in the neighbouring residential streets of Cole Park Road and Mary's Terrace.

...

... Whilst the building heights exceed those set out in Policy DM DC3 and the relevant SPD ....

The securing of substantial rail investment and improvements as described above are considered to be of greater planning benefit to the revitalisation of Twickenham town centre in accordance with Core Strategy Policy CP9 and the UDP Proposal Site (T17). With regard to the heights of the buildings, there has been significant local community support for the public benefits of the overall scheme including the improvements to the station and its immediate surroundings as listed above."

12. Those reasons make clear that the proposal was considered to accord overall with the development plan. The treatment of Policy DM DC3 itself is a little confused. The reasons suggest that the proposal was considered not to comply with the policy because it exceeded the height limitation, but that the non-compliance was outweighed by the benefits of the proposal. Yet the reasons also show that the proviso to the policy was in fact satisfied, in that the height of the buildings was considered acceptable in the light of a full design justification based on a comprehensive townscape appraisal, and there was significant local community support for the public benefits of the overall scheme. On that basis there should have been a finding that the proposal complied with the policy. Nothing ultimately turns on this, however, and it is accepted that the planning committee was entitled to conclude that the proposal accorded overall with the development plan even if there was non-compliance with certain individual policies.

13. The appellant's grounds for judicial review were that the Council erred in law in failing to have regard to (1) the TAP report and (2) the alternative form of development advanced by TRAG. Judge McKenna rejected the claim on both grounds. As I have said, permission to appeal was granted only in respect of the ground relating to the TAP report.

The TAP report

14. TAP was set up by the Leader of the Council and had a local membership. A document setting out its terms of reference referred to planned improvements to Twickenham Station as one of a number of large development opportunities in the area, and stated that the Council was determined that the vision for the future of Twickenham, and its execution, should be rooted on the views of local people and be a bottom up, not top down, process. The panel was to be convened to work with the Council on a blueprint for the regeneration of the town. The Council had already agreed that a statutory Area Action Plan for the town should be prepared. The terms of reference continued:

"Purpose

The purpose of the Twickenham Advisory Panel is to work with the Council and to advise on and assist in the development and implementation of a blueprint for the regeneration of Twickenham, including the Area Action Plan.

Mandate
The Advisory Panel is charged with assisting in:

• Direction
• Overall Work programme
• Work with relevant agencies
• Advice, guidance and technical support
• Promote funding solution, including fundraising
• Safeguarding the implementation of specific proposals or projects
• Recommendations to the Leader of the Council

...

Functions of the Advisory Panel
The task of the Panel is to consider matters relating to the development of Twickenham including the production of the Area Action Plan and any actions or activities which may arise from this; receive commissions from the Area Action Plan, when applicable; specific site projects; research and analysis.

Performance of the Panel's functions
The panel will perform its functions and conduct its proceedings in public. Require minimum attendance of six meetings per year. Recommendations may be made to the Cabinet and to the Leader of the Council.

Scope of advice
When advising the Cabinet, the Panel shall be free to recommend any action which they consider appropriate."

15. TAP's "Report on the Proposals for the Redevelopment of Twickenham Station", dated December 2011, consisted of a 16 page main report and nine appendices. It opened with this:

"Introduction

1.1 This is a Report for Lord True [the Leader of the Council] and Council Officers on the outcomes of the Twickenham Advisory Panel's work in relation to the proposals for Twickenham Station being promoted by Solum Regeneration through their planning application (reference 11/1443/FUL).

1.2 The initial brief from Officers to TAP was to organise a public event in respect of the proposals but was not prescriptive as to the form of event. When discussing the best approach to adopt, the Panel was aware of:

• The application 11/1443/FUL being live at the point at which TAP was invited to apply itself to the proposals.
• The considerable local interest in the proposals as well as the history of consultation, applications, local protest and mobilisation through groups such as TRAG.

1.3 The approach adopted by TAP in this context was to:

• Focus on the submitted application as validated.
• Seek to raise awareness of the application within the local community.
• Avoid being partisan and operate as an ‘Honest Broker' - providing a channel for dialogue between the local community and Solum, clarifying points of confusion and misunderstanding. This was seen as a positive niche for TAP in the existing context.
• Anticipate and ultimately prepare an objective and fair report of its work and findings."

16. The report went on to describe the public event which took place in July 2011, a follow-up open letter written by TAP to Solum, the response received from Solum, and a meeting held with Solum on 23 August 2011. I note in passing that a separate minute of that meeting records TAP's chair, Professor Leonard, as stating that TAP's aim in relation to the station proposals was to raise awareness within the local community and provide clarity in relation to issues and concerns that had been raised, and that TAP planned to provide a report to Lord True and the planning committee on the outcome of the process. Returning to the TAP report, it summarised TAP's further enquiry concerning the proposals in a number of areas (fuller details were given in an appendix), before setting out the following conclusions:

"Conclusions

The conclusions drawn from TAP's work on the Station proposals are as follows:

• The public event confirmed the significant interest in the redevelopment of the Station and there is a clear consensus that the existing Station needs investment and improvement. The Rugby World Cup 2015 is a target to aim for but equally time is of the essence in delivering what will be a complex, civil engineering project.

• Through the public event, the meetings with Solum and enquiry of the application, the proposals have been tested in terms of the areas of most concern to the local community. These are principally in terms of: the way in which the proposals have been consulted on and the underlying viability issue; the impact on local amenity, transport and event-day operations; as well as the benefits of the proposals to the local economy and Twickenham's regeneration

• The conclusion drawn by TAP from its enquiry and work on the station application is that unfortunately there are serious areas of concern which cannot be easily reserved to further detailing of the design and construction method post-consent.

• Whilst the height and mass of the development is explained in terms of viability, it is not sustained in terms of local support, the Station Area SPD or the impact on adjoining residents.

• There is no explanation of why the £580k unallocated s.106 funding has not been used to subsidise the scheme and reduce its height and mass in response to local consultation.

• The securing of additional financial support would take the pressure off the design and the loading of apartments over the Station in an environment that is subject to high noise pollution, railway vibration and event-day operations and in a form that will be less prejudicial to the future expansion of the station and cast the Riverside Walk in less permanent shadow.

• Given its current condition and failings together with its strategic importance it feels extraordinary that no other funding is available to support the improvements to Twickenham Station.

• We would therefore commend a ‘Plan B' proposal for the Station which is not driven purely by the imperative of maximising ‘enabling', residential value and is instead in line with Planning Policy, responds to concerns with respect to the impact on local amenity and economy, provides substantive improvements in event-day operations and passenger capacity - in other words a Station that is fit for purpose, future proof and a source of real pride and confidence in the regeneration of Twickenham.

• TAP does feel that the position Solum has taken has really restricted its work and what we have been able to achieve particularly Solum's refusal to develop a Plan B as well as their arguably defensive and evasive approach to a number of questions from TAP some of which still remain unanswered."

17. It is clear from various documents disclosed at a late stage by the Council (and admitted without objection as fresh evidence before us) that TAP was working to prepare its report in time for the planning committee meeting at which Solum's planning application was to be considered, and that Council officers were aware of this. Ms Ishbel Murray, an Assistant Director within the council's Environment Directorate, liaised with TAP in relation to the production and distribution of the report. Once it was ready, not only was the report sent to the Leader of the Council, but copies were also distributed to, among others, Mr Paul Chadwick (Director of Environment) and Mr Jon Freer (Assistant Director of Environment (Development & Street Scene)). A letter dated 4 April 2013 from the Council's legal services department to the appellant's solicitors refers also to the position of Mr Chris Tankard (Development Control Team Leader) and Mr Bryan Staff (Senior Planning Officer), who were named as the contact officers for the application and who wrote the officers' report:

"The recollections of Chris Tankard, Development Control Team Leader, are that the TAP report was circulated on Friday 9 December. Chris Tankard received his copy from Jon Freer (Assistant Director of Environment (Development & Streetscene)) around midday but did not have time to look at it in any meaningful detail at that time as they were up against a midday publication deadline. Following a last minute request from Solum some of the conditions then needed fine tuning and Chris Tankard and Bryan Staff were working on these until late afternoon on the Friday. Chris Tankard took the TAP report home to read over the weekend and its contents were summarised in the Addendum published on 16 December. Jon Freer did not receive a copy of the TAP report direct but took a copy from another officer who had received a copy. He had read the TAP report in speed reading mode but after dispatch of the committee report to publication to see if there were any issues not covered in the report. He found none."

18. In those circumstances it is understandable that the officers' main report published on 9 December stated that no comment had been received from TAP at the time of writing. It is far from understandable, however, why the first addendum, published on 16 December, stated that the TAP report "has not been submitted against the planning application or formally to planning officers and as such the comments therein are not considered material to the consideration of this application". It was clear that the TAP report related to the planning application, was intended to be taken into account in the planning committee's consideration of the application, and was being distributed to officers for that purpose. There is nothing in the contemporaneous material, prior to the statement in the first addendum, to suggest that anyone within the Council understood the matter differently. Nor does the recent letter of 4 April 2013 contain any such suggestion. On the contrary, it shows that the Council officers were treating the TAP report as relevant to the application; and far from explaining why the first addendum stated that the report was not considered material, it asserts with conspicuous inaccuracy that the contents of the report were summarised in the first addendum. The truth behind the volte face represented by what was actually stated in the first addendum has not been disclosed by the Council.

19. Members of TAP were advised by Council officers against speaking at the planning committee meeting on 19 December. That advice was accepted. Nothing turns on this aspect of the matter and I therefore say no more about it.

20. There are two documents emanating from the Leader of the Council to which I should refer in order to complete the factual picture. First, in a letter dated 20 February 2012 to members of TAP he said this:

"As the Twickenham Advisory Panel, your first specific commission that was not generated internally - namely to organise a public meeting on the Station Development - was a very challenging but an important one for the town in the most difficult circumstances of an evolving planning backdrop. It provided you all with the opportunity to capture and distil some of the passion of the people of Twickenham. Whilst the report you produced on the proposals for a Station Development was not able to have been considered through the planning committee process, it is very thorough in its consideration of the many concerns and issues raised by local residents and contains a number of elements I would have agreed with."

21. The second document is a press statement issued on 20 April 2011 by the Leader of the Council on the subject of TRAG's legal challenge. The statement included the following comments on TAP:

"In this process [the emerging Area Action Plan] the Twickenham Panel was set up in parallel to the direct democracy consultations to provide a potential additional sounding board and independent advisory role. It has never had any statutory or representative role, although we greatly value the work of its members.

...

As to the Station, after the Panel brought Solum to meet the public at my request, they themselves decided to write a report on the plans ...

Unfortunately - and this was a result, not of conspiracy, but poor communication - this very thorough Report was not presented in time to be considered before the Planning Committee. Nor, because of Christmas leave, did I myself see it until the New Year."

That explanation of why the TAP report was not considered by the planning committee does not square with the explanation given in the first addendum or with the facts as they appear from the evidence before this court.

22. It will be apparent that I am deeply unimpressed by the way the Council handled the TAP report. The question for this court, however, is whether the failure to take the report into account in deciding on the grant of planning permission was a legal error justifying the quashing of the permission. To that question I can now turn.

The relevant legal principles

23. There was relatively little dispute between counsel as to the relevant legal principles.

24. Section 70(2) of the Town and Country Planning Act 1990 provides that in dealing with an application for planning permission the local planning authority "shall have regard to (a) the provisions of the development plan, so far as material to the application, ... and (c) any other material consideration".

25. The statute does not lay down what other considerations are "material" for this purpose. In Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 it was held that "material" means "relevant". Lord Keith dealt with the point at page 764G-H:

"Sir Thomas Bingham MR in the course of his judgment in this case said that ‘material' in subsection (2) meant ‘relevant', and in my opinion he was correct in this. It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit ...."

26. A helpful means of determining what is material or relevant is to be found in the judgment of Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P&CR 343, albeit the statutory context was different (the confirmation of a compulsory purchase order). At pages 352-353 he set out the following principles:

"1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant ... or that he has failed to take into consideration matters which he ought to take into account ... have the same meaning.

2. The decision-maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb ‘might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

...

4. ... [T]here is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question ....

5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.

6. If the judge concludes that the matter was ‘fundamental to the decision', or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.

7. ... Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief."

27. R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 was a decision of this court on section 70(2) of the Town and Country Planning Act 1990 and therefore directly in point. Jonathan Parker LJ, with whom the other members of the court agreed, explained "material considerations" as follows at [121]:

"In my judgment a consideration is ‘material', in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues."

28. Mr Douglas Edwards QC, for the appellant, invited us to apply the test in Kides and sought to distinguish the statement of principles in Bolton. I see no real difference between the formulations in the two cases, if one focuses as one should on the second of the categories referred to in Bolton (on the basis that section 70(2), although requiring other material considerations to be taken into account, leaves at large what other considerations may be material). Any distinction between "a real possibility that he would reach a different conclusion if he did take that consideration into account" and "a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other" is too fine to matter for present purposes.

The rival contentions

29. Mr Edwards submitted that the TAP report was plainly capable of tipping the balance if placed in the decision-maker's scales, and that it was therefore a material consideration. He relied on TAP's remit, the fact that the report followed an extensive process of public engagement, the substantive content of the report, the fact that TAP intended the report to be part of the decision-making matrix and that Council officers knew that that was the position, and the fact that officers (and indeed the Leader of the Council) regarded the report as relevant to the application. He placed particular emphasis on the requirement in the proviso to Policy DM DC3 for significant local community support for the public benefits of the overall scheme, and submitted that part of TAP's role was to "capture and distil some of the passion of the people of Twickenham" (as the Leader of the Council put it in his letter of 20 February 2012 at [20] above) and that the TAP report showed public concerns about the development in general and its height in particular. He made the point that the officers' report, when dealing with the "statement of community engagement" that was lodged as required with the planning application, observed that the dialogue with the community could have been improved; and he submitted that the TAP report would have been of assistance in meeting that deficiency. He also referred to the minutes of the planning committee meeting on 19 December as showing that the grant of planning permission was an "on balance" decision.

30. For the Council, Mr Rupert Warren QC pointed to the fact that the proposed development was a major scheme which had been the subject of an environmental statement and a substantial officers' report. Solum's viability study had been examined in detail and independently verified. The reasons for the grant of planning permission showed that the planning committee considered the proviso to Policy DM DC3 to be satisfied. Leaving aside the TAP issue, the officers' report dealt lawfully with all relevant considerations. It summarised the extensive representations received for and against the proposed development (and the members of the planning committee were also addressed by interested parties at the meeting on 19 December). All the points made in the conclusions to TAP's report had been taken into account; TAP raised no important point that had not otherwise been dealt with; TRAG and many others had said the same things in far greater detail. There was nothing in the content of the report that might tip the balance or give rise to a real possibility of a different decision being reached. Nor was there anything in TAP's status, remit or role that made its report a material consideration.

31. Mr Neil Cameron QC made a number of submissions to similar effect on behalf of Solum. He submitted that the TAP report was not required to be taken into account simply because it was submitted by TAP: in general, save for the special status of statutory consultees, it is the content of representations rather than the person making them which is important; TAP's terms of reference made plain that they were to work with the Council on a blueprint for the regeneration of Twickenham, that is to say a policy-making function; the fact that they held a meeting at which views were expressed was not a substitute for the formal planning consultation process; and as far as the planning application was concerned, TAP was relaying comments made by others. The TAP report did not raise any issues of substance which were not already before the planning committee: in support of that contention Mr Cameron relied on a detailed analysis submitted as an addendum to Solum's summary grounds of defence. The planning committee held that the proposal accorded overall with the development plan and that Policy DM DC3 was complied with; and nothing in the TAP report undermined the planning committee's findings that the proviso to DM DC3 was satisfied.

32. Mr Cameron submitted in the alternative that if the court were to find that failure to take account of the TAP report amounted to a failure to have regard to a material consideration, the court should nevertheless decline, in the exercise of its discretion, to quash the decision, applying the test in Simplex v Secretary of State for the Environment (1989) 57 P&CR 306 that the decision would necessarily have been the same if the report had been taken into account.

Discussion

33. I am very surprised that the Council officers advised members of the planning committee to leave the TAP report out of consideration, which was the effect of the relevant passage in the first addendum to the officers' report. Although TAP's stated purpose was to advise on and assist in the implementation of a blueprint for the regeneration of Twickenham, its terms of reference also extended to consideration of specific site projects; it had been given an initial brief by Council officers to organise a public event in respect of Solum's specific proposal; and the further steps it took in relation to the proposal, including the submission of a report, were a natural consequence of its initial involvement and cannot be said to have been outside its remit. Its report was, moreover, expected by Council officers and was actually considered by officers once it had been received. The obvious course would have been to summarise it for members of the planning committee as part of the "Public and Other Representations", as was evidently contemplated at the time of preparation of the officers' main report (see [9] above). I have referred already to the absence of any satisfactory explanation of why this was not done.

34. I am not persuaded, however, that the resulting failure of the planning committee to take the TAP report into account amounted to a breach of the statutory duty to have regard to material considerations.

35. First, I accept the submission of counsel for the Council and Solum that all the points of substance made in the TAP report were covered in the officers' report and were taken into consideration in any event.

36. Most importantly, the TAP report contained nothing capable of affecting the committee's conclusion that the proposal accorded overall with the development plan or the committee's specific findings relevant to the proviso to Policy DM DC3. As to the proviso, nothing in the TAP report could have affected the committee's assessment of the acceptability of the design and architectural approach of the proposed development, nor was there anything to undermine the view that there existed significant local community support for the public benefits of the overall scheme. If anything, the first paragraph of the report's conclusions, in referring to "a clear consensus that the existing Station needs investment and improvement", lent support to the existence of that local community support. The statement that the height and mass of the development "is not sustained in terms of local support" made a different point and added nothing in that respect to what was already known to the planning committee from the summary of representations in the officers' report.

37. As to the comments in the TAP report on the question of viability and funding, there had already been independent verification of Solum's financial viability study and the issue of viability was examined in detail in the officers' report. Nothing said by TAP was capable of affecting the assessment already made.

38. TAP's commendation of a Plan B proposal was expressed in very general terms and is to be contrasted with the specific, worked-up Plan B already put forward by TRAG and dealt with in the officers' report. What TAP said on the subject took things no further. In any event, in dismissing the challenge to the planning committee's alleged failure to take into account TRAG's worked-up Plan B, Judge McKenna held that there was no requirement to consider alternatives, given the committee's finding that Solum's proposal accorded overall with the development plan and would not cause harm to the townscape and the built environment. Permission to appeal against that finding was refused.

39. Given's TAP's position as an advisory body established by the Leader of the Council with broad terms of reference, and the fact that it had been given at least the initial brief of organising a public event in respect of the proposed development, its views on that development were plainly worthy of respect. But its role and remit did not give it anything like the status of a statutory consultee; and in so far as it was conveying the views of members of the public who had taken part in its processes, it is likely that those same members of the public had submitted their own representations directly to the Council: the TAP report records that 114 people attended the public event, whereas the officers' report records that letters had been received from over 1,300 households. The points made in the TAP report must also be considered in the light of the detailed consideration already given to those points in the officers' report, to which I have already made reference. Taking everything into account, I do not think that the fact that the points were being made specifically by TAP was capable of giving those points any greater weight than they already had in the decision-making process.

40. For those reasons the failure to take account of the TAP report did not in my view amount to a failure to have regard to a material consideration, whether one uses for that purpose the language of Bolton or the language of Kides. There is no real possibility that the planning committee would have reached a different conclusion if the report had been taken into account. It was not something that would (or even might) have tipped the balance to any extent. The way the report was handled was highly unsatisfactory but did not render the grant of planning permission unlawful.

41. On that basis the question of relief does not strictly arise. I should, however, make clear that the factors to which I have referred in reaching my conclusion on material consideration are of sufficient strength to lead me to the view that the planning committee's decision would necessarily have been the same if the TAP report had been taken into account. If, therefore, the question of relief had arisen, I would have been against quashing the decision as a matter of discretion.

Conclusion

42. I would dismiss the appeal.

Lord Justice Pitchford :

43. I agree.

Lord Justice Maurice Kay, V.P. :

44. I also agree.