Barbican Quarter Organisation Limited v City of London Corporation: EIA functional separation and demolition avoidance policy

The High Court has dismissed a judicial review challenge to the City of London Corporation's grant of planning permission for the London Wall West development, a scheme involving the demolition of Bastion House and the Rotunda at 140 and 150 London Wall and replacement with buildings of up to 17 storeys. Mr Justice Fordham rejected all three grounds advanced, though not before finding that the local planning authority had in fact breached its statutory duty under reg. 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

EIA functional separation: a breach without consequence

The first ground turned on whether the City of London Corporation had complied with its obligation under reg. 64(2) to make appropriate administrative arrangements ensuring functional separation between itself as developer and itself as decision-maker. A bespoke Handling Note had been designed and published for the purpose, providing — amongst other things — that planning authority documents should be stored in file spaces inaccessible to officers on the developer side. In practice, several folders were accessible to four named officers from the developer team, including legal and public realm officers.

Fordham J found that this constituted a breach of reg. 64(2). He accepted the London Historic Parks interpretation that the statutory duty requires not merely the design of appropriate arrangements but their delivery, and that failure to implement what had been identified as appropriate was itself unlawful. On that question the judgement is clear and significant.

However, each of the four relevant officers gave evidence — confirmed on a statement of truth — that they had not accessed any of the documents which ought to have been inaccessible. The judge accepted that evidence unreservedly, and concluded that the decision and decision-making process would inevitably have been the same had full compliance been achieved. That finding severed the chain of reasoning on which the claimant relied.

The claimant's argument that any breach of an EIA-derived statutory duty is automatically vitiating was rejected. Fordham J held that the Soneji question — whether a breach of statutory duty was intended to have automatic vitiating consequences — applies equally in the EIA context. Where a breach demonstrably can have had no bearing on the decision, the planning permission is not thereby rendered unlawful. The discretionary and statutory materiality grounds (under s.31(2A) of the Senior Courts Act 1981) for refusing relief were likewise satisfied: no officer had opened an unlocked door; the public interest in functional separation had been vindicated through the judicial process.

Demolition avoidance: policy CS15 correctly interpreted

The second and third grounds concerned para. 3 of Core Strategic Policy CS15 of the January 2015 City of London Local Plan, which calls for "avoiding demolition through the reuse of existing buildings or their main structures". The claimant argued this provision created, in substance, a presumption against demolition such that a scheme involving total demolition necessarily conflicted with the policy, requiring officers to advise members accordingly.

Fordham J disagreed. CS15 is a strategic sustainability policy containing five integrated objectives. Paragraph [3] is one element within a wider framework concerned with achieving a more sustainable City in conditions of high-density urban development. It could not be read in isolation as a standalone presumption. The policy called for evaluative judgement across its composite parts, and it was open to officers and committee members to conclude that a scheme involving full demolition was nonetheless in overall compliance with CS15, provided a robust assessment of retention options had been undertaken.

That assessment had been carried out through the Carbon Optioneering Study 2023, prepared in accordance with the authority's own published Planning Advice Note, and independently reviewed by Arcadis. Six development scenarios — including multiple retention options — had been assessed over a 60-year whole life-cycle timeline. Officers had communicated the conclusions to members in detail. Nothing in the officer reports, the addendum, or the answers given at the committee meeting on 17 April 2024 amounted to a material misdirection under Mansell principles.

The third ground, alleging a failure to make reasonable enquiries about the results of a Soft Market Exercise conducted in April 2023 — which had produced responses including credible retention and retrofit concepts — also failed. Officers were aware that hotel and residential scenarios in the optioneering study had been informed by that exercise. The fresh evidence disclosed in the proceedings did not demonstrate that any further enquiry would have generated material of legal relevance, whether by reference to policy CS15, the Mount Cook principles on alternative schemes as material considerations, or otherwise.

Procedural note

Fordham J took the opportunity to observe that CPR PD54A §15.7 — requiring parties to lodge an agreed list of issues, chronology and essential pre-reading list no later than seven days before hearing — had not been complied with. He noted that compliance remains obligatory whether or not it is included in case management directions, and that parties uncertain of their obligations should raise this proactively with opponents and, if necessary, the court.

The claim was dismissed with the claimant ordered to pay the defendant's costs, summarily assessed at £10,000.

Copyright & permissions