High Court quashes prior approval for change of use over “seriously flawed” consultation

Hackney Council's prior approval for the change of use of a commercial building to residential has been quashed after a High Court judge found the London borough's consultation on the application to be "seriously flawed".

In Strongroom Ltd, R (On the Application Of) v London Borough of Hackney [2024] EWHC 1221 (Admin) (22 May 2024), Mrs Justice Lang concluded that a nearby business owner had suffered prejudice by being deprived of an opportunity to respond to a consultation on the application.  

The application at the heart of the dispute sought to change the use of a commercial building into a residential one.

However, the owner of a recording studio, which also includes a bar and restaurant, across the street from the building opposed the move. The venue is also a well-established live music venue.

The business owner feared that the change of use would lead to noise complaints from future residents and argued that the council should apply the Agent of Change principle, requiring the developer to manage and mitigate the impact of the change.

The owner made these points in their response to a consultation on the application.

The London borough went on to refuse the developer's application for prior approval for a change of use in August 2022.

However, the developer submitted a second application for prior approval that was later granted in January 2023, paving the way for six new residential dwellings to be established across the road from the business.

This application had been submitted and granted without the business owner being notified or consulted upon, as the council had done previously.

The business owner went on to challenge the decision and the lack of consultation on the following grounds:

The owner advanced the following grounds:

1. Breach of legitimate expectation of proper notification and consultation;
2. Irrational exercise of discretion;
3. Mistake of fact;
4. Failure to have regard to a material consideration.

In its detailed grounds of resistance to the 2024 judicial review challenge, the council conceded that the failure to consult the claimant was unlawful, on ground two only, because there was no rational reason for the decision to consult the claimant on the first application but not the second.

In the 2024 case, the council had conducted a consultation for the second application, but only reached out to properties on the same side of the street to the site, missing out the claimant even though the studios were placed directly opposite.

Describing the circumstances, the judge said: "The list of consultees excluded the sole objector to the application and the sole supporter of the application in the consultation on the First Application.

"The planning officer knew that the claimant had lodged a serious objection to a very similar proposal some 6 weeks previously.

"That alone should have been a sufficient reason for the Claimant to be consulted on this revised application."

The judge also noted that the planning officer recorded in a report that no objections to the application had been received, which was a relevant consideration for the decision-making officers.

"However, it was an unreliable statement," the judge said.

She added: "The planning officer must have appreciated that the likely reason why there was no objection from the claimant was that the claimant had not been notified or consulted, and to that extent, his report did not disclose the full position.

"For these reasons, I consider that the consultation procedure was seriously flawed."

Ultimately, the judge issued a quashing order and called for the reassessment of a noise impact assessment, which the claimant had argued failed to adequately address noise impact from external commercial premises.

The business owner's challenge came three years on from a separate judicial review challenge they had successfully launched over planning permission for the development of another neighbouring property.

In that case, the judicial review challenge was won on the grounds that the council failed to carry out a lawful notification and consultation process in regard to the claimant.

Adam Carey