Dwellinghouse – Claimants’ neighbours applying for small house extension – Claimants objecting – Council issuing guidelines on distance between windows of proposed development and neighbouring properties – Defendant council granting planning permission – Claimants applying for judicial review – Whether planning committee failing to take account of material consideration – Whether compelling reasons for refusing judicial review – Application dismissed
The claimants objected to their neighbours’ application for planning permission for a single-storey rear extension, first-floor front extension and single-storey front/side extension to their home. They contended that the proposal for a first-floor front extension would be intrusive and would contravene the defendant council’s guidelines on the minimum distance between windows.
In advance of the defendants’ consideration of the application, a planning officer prepared a report recommending conditional approval. The defendants’ planning committee subsequently considered and approved the application. The claimants applied for judicial review, seeking an order to quash the grant of planning permission and asserting that the report prepared for the planning committee had failed to include material facts and observations.
Prior to the hearing, the defendants reconsidered the application. The attention of the planning committee was drawn to the fact that the distance between one of the windows in the proposed extension and an existing window in the claimants’ house was below the recommended minimum contained in the guidelines. The committee made a site visit before confirming the earlier grant of planning permission.
Held: The application was dismissed.
The claimants’ ground of challenge was made out. However, it did not automatically follow that the grant of planning permission should be quashed.
Since the claimants had expressly asserted that the proposed development contravened the guidelines, it was incumbent on the defendants to make an overall assessment of the proposal. This included an assessment as to whether it contravened the requirement for a minimum distance between windows. On the evidence, no such assessment had been undertaken. Therefore, a potentially relevant factor had not been taken into account before the planning application was approved, and there was a real possibility that the result might have been different had the committee considered that factor.
However, the reappraisal undertaken by the defendants constituted a compelling reason for the court to exercise its discretion to withhold the relief sought. Although it was necessary to exercise a degree of caution when a public body embarked upon a reconsideration of a decision in the light of threatened or actual judicial review proceedings, the evidence demonstrated that the defendants had approached their reconsideration with an open mind and with all the relevant facts before them.
The guidelines were meant to be approached with a degree of flexibility, and not with mathematical precision. In the instant case, nothing in the approach of either the planning officer or the planning committee suggested that their approach to their own guidelines was unlawful. In any event, the members of the committee had decided to view the building for themselves and so had put themselves in the best possible position to review the claimants’ objection.
In all the circumstances, nothing would be achieved by making a quashing order since the defendants would have to consider the application yet again and, in the light of the previous reconsideration, it was virtually inconceivable that they would not grant planning permission.
The claimants appeared in person; Richard Langham (instructed by the legal department of Swansea City and County Council) appeared for the defendants.
Eileen O’Grady, barrister
