Town and country planning – Planning permission – Amenity impact – Daylight – Defendant local authority granting planning permission for development – Claimant neighbour applying for judicial review – Whether planning committee being materially misled – Whether planning officer misapplying protection of amenities policy and guidance on safeguarding daylight – Application granted
The claimant owned a flat in a property at 72 Pennard Road which faced the rear of a proposed development at 65 Shepherd’s Bush Green, London, within the Shepherd’s Bush Conservation Area. The claimant supported the principle of redevelopment of the existing outdated office building and its replacement with a hotel. She did not object to the original plans of the interested party developer for the design of the new building. However, she and her neighbours objected to a revised design because of its impact on their properties.
A planning officer visited the area and recommended that the defendant’s planning committee grant permission for the development. His report considered the defendant’s policy on the protection of the amenities of neighbouring occupiers. The policy described a general standard in determining whether a new development would have an overbearing or dominating effect to the detriment of neighbours. The officer found that the development would not comply with the general standard but there were existing factors affecting the neighbours’ outlook that rendered the standard redundant. He concluded that there would not be a significant loss to the neighbours’ outlook. He also considered the impact on daylight to the neighbours’ properties, relying on a report from the interested party’s consultants that assessed the total amount of daylight the properties received against guidance provided by the Building Research Establishment (BRE). If the amount did not meet the guide’s criteria, the report went on to consider the distribution of daylight within the building. The officer concluded that there were only relatively limited losses and on balance the development was acceptable.
The claimant applied for judicial review of the defendant’s subsequent decision to grant planning permission, contending that the planning committee had been materially misled as the planning officer had misapplied the protection of amenities policy by ignoring the general standard and erred in applying the BRE guidance on safeguarding daylight.
Held: The application was granted.
(1) An officer’s report had to be read benevolently, fairly, as a whole and on the understanding that it was written for councillors with local knowledge. Having set out Policy 8 of the defendant’s Supplementary Planning Document (on the protection of amenities), the officer identified the existing prevailing condition along the rear of the properties on Pennard Road as one of ‘large meeting small’. Policy 8 made clear that the general standard was not an inflexible rule and might be departed from, provided the officer exercised an on-site judgment about the impacts of the deviation on existing properties. The planning officer had to be taken to have accepted that the general standard could not be met in the present case. There was nothing unlawful about the officer’s exercise of judgment in concluding that the overlooking was acceptable despite non-compliance with the general standard. The officer explained his reasons for his judgment – the general standard was of limited help; the presence of trees limited the sky view; the prevailing existing condition along the rear of the properties was one of large meeting small and the impacts of other local buildings were greater.
(2) On a fair reading of the officer’s report as a whole, he had materially misled councillors on the impacts of daylight at the properties on Pennard Road. Where the line was drawn between an officer’s advice that was significantly or seriously misleading and advice that was misleading, but not significantly so, depended on the context and circumstances in which the advice was given, and on the possible consequences of it. The court should not interfere unless there was some distinct and material defect in the officer’s advice. In looking at the officer’s report the courts should not impose too demanding a standard. Part of a planning officer’s expert function in reporting to a committee was to make an assessment of how much information to include in the report to avoid burdening the committee with excessive and unnecessary detail. It was relevant that the BRE Guide was a technical document and might not be familiar to councillors, unlike planning policies, with which they could be expected to be more familiar. In considering the impact of a proposed development, in accordance with the BRE Guide, the council was not free to adopt any interpretation of the Guide that might be adopted within the limits of rationality. Written documents normally fell to be construed objectively in their context by the court, including documents promulgated by an authority or other institution. In the present case, the officer’s report was flawed by misapplication of the BRE methodology. By virtue of the error councillors were given scant information on no sky line (NSL) compliance (daylight distribution). Councillors would probably not have understood that failing to meet the guideline for the distribution of daylight within a building was a separate distinct reason why daylight might be adversely affected and the need to form a judgment on the implications of any non-compliance with the guide: R (Morge) v Hampshire County Council [2011] UKSC 2, Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 and R (London Borough of Town Hamlets) v Rainbird [2018] EWHC 657 (Admin) followed.
(3) The court was not required to refuse relief under section 31 of the Senior Courts Act. The main objections to new development in the borough related to loss of sunlight, daylight, outlook and privacy. Had councillors been made aware of a separate distinct reason why daylight at the properties might be adversely affected by the development they might have sought more information and requested further revisions to the design. It was a matter of speculation. It was not highly likely that the outcome would not have been substantially different if councillors had been made aware of a separate distinct reason why daylight might be adversely affected by the proposed development.
Annabel Graham Paul (instructed by Richard Buxton Environment and Public Law) appeared for the claimant; Cain Ormondroyd (instructed by Hammersmith & Fulham London Borough Council) appeared for the defendant; Mary Cook (instructed by Town Legal LLP) appeared for the interested party.
Eileen O’Grady, barrister
