Planning permission – Objectors – Legitimate expectation – Defendants granting retrospective planning permission for conservatory on amended plan – Claimant objectors seeking judicial review – Whether claimants having legitimate expectation of being consulted about amended plan, seeing amended plan on defendants’ website and consideration of amended plan by members briefing panel – Application granted The claimants were the owner-occupiers of a house in North London. The interested party lived in the upper ground floor flat next door (16A). The houses were adjacent terraced houses within a conservation area. In 1987, the defendant local authority granted planning permission for the construction of an extension to the rear of 16A, which included a conservatory attached to the rear of upper ground floor, with steps leading into the garden. Held: The application was granted. Richard Harwood (instructed by Forsters LLP) appeared for the claimants; Michael Thomas (instructed by Camden London Borough Council) appeared for the defendants. Eileen O’Grady, barrister
In 2000, the interested party built a different replacement conservatory without first seeking planning permission. The claimants objected to the loss of privacy as they were now overlooked from above, at close quarters, both in their home and in the garden. The interested party installed a trellis which reduced the overlooking but was obtrusive and unattractive.
Following complaints, the interested party submitted a retrospective planning application in January 2010 for the conservatory and steps. The defendants consulted the claimants who objected. The application then went to a members briefing panel, set up to advise whether an application should be determined by officers under delegated powers or by the development control committee. The panel deferred its decision pending further negotiations with the interested party who submitted an amended plan. Neither the plan, nor an officer’s briefing in its favour, was put on the defendants’ website, contrary to their stated policy.
A meeting of planning officers subsequently granted full permission on 1 June 2010 without referring the matter back to the panel for consideration. The defendants explained that there had been a recent local election and a panel had not yet been set up.
The claimants applied for judicial review of defendants’ decision to grant retrospective planning permission. The claimants contended that they had a legitimate expectation that they would be consulted on a revised drawing as indicated in the defendants’ Statement of Community Involvement; that the officers’ report and drawing would be made available for comment on the website; and that officers would consult a members briefing panel.
(1) Where a public authority had issued a promise or adopted a practice which represented how it proposed to act in a given area, the law required it to be honoured unless there was a good reason not to do so: R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 considered.
In the present case, the claimants had a legitimate expectation that the defendants would send them the revised application so that they could comment upon it since it was only upon seeing the drawing that they would know precisely what was proposed. Further the Statement of Community Involvement required re-consultation following the submission of a revision of the planning application. It was only possible to consult on a revision once that revision had been made. Even if the local planning authority had a disclosed view as to what should be in a revision, that was not the same as consultation on the revision. Therefore the defendants had breached the claimants’ legitimate expectation to be notified and consulted on the revision to the application without giving any valid explanation for failing to do so.
(2) Although there was no evidence of a sufficiently clear representation that amended plans would be put on the website to give rise to a legitimate expectation, the planning protocol and the website included clear representations that officers’ reports would be available online in advance of members briefing meetings. That fulfilled the need for openness and was intended to enable interested parties to consider reports and make additional comments before meetings. Had the report been placed on the defendants’ website, it would have been seen by the claimants in time for representations to be made in advance of the 1 June meeting. Thus the defendants had breached the claimants’ legitimate expectation and had given no good reason for their failure.
(3) Where a decision on the method of determination was deferred, the defendants had plainly anticipated that the application would be referred back to the panel for a decision later. Objectors such as the claimants had a legitimate expectation that the panel would be consulted over whether the planning application would be decided by officers or referred to committee since part of the members’ role at panel meetings was to consider objections and the way officers intended to deal with them. The defendants’ departure from its representations was not justified by the recent election as the panel could have been reconstituted earlier or the reconsideration postponed, since there was no particular urgency about the application.
(4) The claimants had been prejudiced as they had been unable to make representations on the amended plan and the report, and the matter had been considered only by planning officers, without input from members. Had the application gone to the panel, the members could have advised that it go to committee. A quashing order would only be refused if it was inevitable that the outcome would have been the same had the correct procedures been followed. In this case, the interested party had built the conservatory without planning permission and made her application under threat of enforcement action; there remained a question whether the proposed amendments made the scheme acceptable. Accordingly, the grant of planning permission would be quashed.
R (on the application of Vieira and another) v Camden London Borough Council
Planning permission – Objectors – Legitimate expectation – Defendants granting retrospective planning permission for conservatory on amended plan – Claimant objectors seeking judicial review – Whether claimants having legitimate expectation of being consulted about amended plan, seeing amended plan on defendants’ website and consideration of amended plan by members briefing panel – Application granted
The claimants were the owner-occupiers of a house in North London. The interested party lived in the upper ground floor flat next door (16A). The houses were adjacent terraced houses within a conservation area. In 1987, the defendant local authority granted planning permission for the construction of an extension to the rear of 16A, which included a conservatory attached to the rear of upper ground floor, with steps leading into the garden. In 2000, the interested party built a different replacement conservatory without first seeking planning permission. The claimants objected to the loss of privacy as they were now overlooked from above, at close quarters, both in their home and in the garden. The interested party installed a trellis which reduced the overlooking but was obtrusive and unattractive.Following complaints, the interested party submitted a retrospective planning application in January 2010 for the conservatory and steps. The defendants consulted the claimants who objected. The application then went to a members briefing panel, set up to advise whether an application should be determined by officers under delegated powers or by the development control committee. The panel deferred its decision pending further negotiations with the interested party who submitted an amended plan. Neither the plan, nor an officer’s briefing in its favour, was put on the defendants’ website, contrary to their stated policy.A meeting of planning officers subsequently granted full permission on 1 June 2010 without referring the matter back to the panel for consideration. The defendants explained that there had been a recent local election and a panel had not yet been set up.The claimants applied for judicial review of defendants’ decision to grant retrospective planning permission. The claimants contended that they had a legitimate expectation that they would be consulted on a revised drawing as indicated in the defendants’ Statement of Community Involvement; that the officers’ report and drawing would be made available for comment on the website; and that officers would consult a members briefing panel.
Held: The application was granted. (1) Where a public authority had issued a promise or adopted a practice which represented how it proposed to act in a given area, the law required it to be honoured unless there was a good reason not to do so: R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 considered.In the present case, the claimants had a legitimate expectation that the defendants would send them the revised application so that they could comment upon it since it was only upon seeing the drawing that they would know precisely what was proposed. Further the Statement of Community Involvement required re-consultation following the submission of a revision of the planning application. It was only possible to consult on a revision once that revision had been made. Even if the local planning authority had a disclosed view as to what should be in a revision, that was not the same as consultation on the revision. Therefore the defendants had breached the claimants’ legitimate expectation to be notified and consulted on the revision to the application without giving any valid explanation for failing to do so.(2) Although there was no evidence of a sufficiently clear representation that amended plans would be put on the website to give rise to a legitimate expectation, the planning protocol and the website included clear representations that officers’ reports would be available online in advance of members briefing meetings. That fulfilled the need for openness and was intended to enable interested parties to consider reports and make additional comments before meetings. Had the report been placed on the defendants’ website, it would have been seen by the claimants in time for representations to be made in advance of the 1 June meeting. Thus the defendants had breached the claimants’ legitimate expectation and had given no good reason for their failure.(3) Where a decision on the method of determination was deferred, the defendants had plainly anticipated that the application would be referred back to the panel for a decision later. Objectors such as the claimants had a legitimate expectation that the panel would be consulted over whether the planning application would be decided by officers or referred to committee since part of the members’ role at panel meetings was to consider objections and the way officers intended to deal with them. The defendants’ departure from its representations was not justified by the recent election as the panel could have been reconstituted earlier or the reconsideration postponed, since there was no particular urgency about the application. (4) The claimants had been prejudiced as they had been unable to make representations on the amended plan and the report, and the matter had been considered only by planning officers, without input from members. Had the application gone to the panel, the members could have advised that it go to committee. A quashing order would only be refused if it was inevitable that the outcome would have been the same had the correct procedures been followed. In this case, the interested party had built the conservatory without planning permission and made her application under threat of enforcement action; there remained a question whether the proposed amendments made the scheme acceptable. Accordingly, the grant of planning permission would be quashed.
Richard Harwood (instructed by Forsters LLP) appeared for the claimants; Michael Thomas (instructed by Camden London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
