Out-Law News 2 min. read

High Court judge dismisses challenge to Ealing shopping centre planning permission

A High Court judge has dismissed a challenge to Ealing Council's approval of plans to redevelop the Oaks Shopping Centre in west London, after disagreeing with claims that the substitution of a councillor on the Council's planning committee was unlawful.

Developer Acton Regeneration Group applied to the Council in 2012 for permission to partially refurbish and redevelop the Oaks Shopping Centre in Acton town centre and an adjacent car park to provide four new shops, six refurbished retail units and 142 new homes. The Council's planning committee resolved to grant permission for the plans at a meeting in October 2013 and planning permission was issued in April 2014.

Local resident Doug Carnegie applied for a judicial review of the decision on behalf of the Oaks Action Group, alleging that the substitution of Labour councillor Abdullah Gulaid with Labour councillor Swarn Kang for the planning committee's vote on the permission had been unlawful and that the planning officer's report had been flawed in how it dealt with heritage assets affected by the proposed development.

In a judgment dated 14 November, Mrs Justice Patterson said the claim that councillor Gulaid's substitution had been unlawful was "unarguable". The claimant had alleged that councillor Gulaid had been replaced by the Council's Labour whip due to a misconception that the councillor had made statements indicating his opposition to the proposals and that the procedure for his substitution was incorrectly followed.

Mrs Justice Patterson did not accept that procedure was incorrectly followed, noting that written notice of the change had been given, and said that a political party's decision as to which of its members should attend a meeting was "part of the democratically elected political process and outwith the reach of the courts".

While councillor Kang had voted in favour of the proposals, the judge rejected the claimant's submission that "the change in composition was done deliberately to alter the outcome of the planning process", which she said could "only be made out if councillor Kang can be shown to have a closed mind".

The judge said that the contributions made by councillor Kang at the planning committee meeting did not support the action group's claims that he had a closed mind on whether the application should receive planning permission. "Rather, they reveal a concerned politician who had evaluated the proposal as a whole and reached an 'on balance' conclusion," said Mrs Justice Patterson.

"It follows that there is no evidence that councillor Kang had a closed mind in the determination of the planning application on its merits," continued the judge. "Accordingly there is no evidence of pre-determination. Nor is there any evidence on which a fair minded observer informed of all the relevant facts could reasonably conclude that there was an appearance of bias."

Mrs Justice Patterson also rejected the claim that the officer's report to the committee had failed to deal correctly with the proposed harm to heritage assets under the proposals. The judge found that "the issue was approached entirely correctly" and that "no harm [to heritage assets] was found after a diligent consideration of the heritage assets".

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