Town and country planning – Planning permission – Amenity impact – Claimants applying for judicial review of decision of defendant local authority to grant planning permission for development of residential property – Whether planning officer being obliged to produce record of decision and reasons – Whether defendants failing to consider amenity objections on merits – Whether defendants failing to have regard to material considerations and correctly interpret local development plan – Application granted
The property known as Portman Mansions, Chiltern Street, London W1 comprised a number of red brick, residential blocks built between 1890 and 1900 containing some 120 residential units. They were unlisted buildings of merit within the Portman Estate Conservation Area. The claimants were the long leaseholders of 2A Portman Mansions in Block 2 which itself contained 48 residential flats. Although their long lease also permitted residential use, the premises were currently used as offices.
The interested party applied for permission to develop the neighbouring block by excavating a subterranean building below a ground level roof covered by soft landscaping. An accompanying design and access statement asserted that, given the site’s location, there were no issues of overlooking or loss of amenity to adjacent sites. The claimants objected to the development because, as the main facing elevation of the new building would be less than 1.5 metres from their windows, it would overshadow their premises and reduce the current level of daylight. They said that that amenity impact was contrary to local planning policy ENV13, which provided that proposed developments resulting in a material loss of daylight/sunlight to existing buildings would normally be resisted; and that permission would be refused where the level of loss was unacceptable. The defendant local planning authority accepted the recommendation of its planning officer, who concluded that the claimants’ objections were not sustainable as a reason for refusing the scheme, and granted planning permission for the development.
The claimants applied for judicial review of that decision, contending that it was flawed on the grounds that the defendants had failed to: (i) consider the claimants’ objections to the effect of the proposed development on the amenity of the premises on their merits; (ii) interpret correctly and apply development plan policy ENV13; (iii) consider their various amenity objections on the merits and have regard to material considerations, as required by section 70(2) of the Town and Country Planning Act 1990; and (iv) apply the local development plan, as required by section 38(6) of the Planning and Compulsory Purchase Act 2004. A question arose concerning the obligation of the planning officer to produce a record of her decision and the reasons for making it.
Held: The application was granted.
(1) (1) Regulation 7 of the Openness of Local Government Bodies Regulations 2014 imposed a duty on a decision-making officer to produce and make available to the public, as soon as reasonably practicable, a written record of his decision and the reasons for it. That regulation was applicable to a decision taken under delegated powers to grant planning permission. There was no basis for holding that a decision to grant planning permission was not a decision, the effect of which was to grant permission to which regulation 7(2)(b)(i) applied. There was no basis for reading the words “other than a planning permission” into regulation 7(2)(b)(i) where they did not appear, or to exclude decisions to grant planning permission from those falling within section 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions. Accordingly, in the present case, the planning officer had been obliged to produce a record of the decision to grant planning permission and the reasons for it as soon as practicable after she made the decision. She had not done so.
In the case of R (on the application of Cooper) v Ashford Borough Council [2016] EWHC 1525 (Admin); [2016] PLSCS 181, it had not been suggested that there was any such duty. Therefore, the judgment in that case needed to be read in the light of the finding in this case that there was an obligation to produce reasons for a delegated decision by an officer under regulation 7.
(2) The report on the basis of which it was to be inferred that the decision to grant planning permission was taken indicated that it was considered (erroneously as a matter of law) that the amenity objections raised by the claimants did not constitute a reason for refusing permission as permission had previously been granted for the development. That misdirection was not immaterial: the relevant amenity objections had not been considered and dismissed on their merits by the decision-maker when permission for the same development was granted in April 2013.
(3) The defendants had failed to address the question whether the loss of light to the claimants’ premises would be material, given the existing limitations on daylight and sunlight reaching the premises, or unacceptable. A conclusion on that issue necessarily had to be reached if policy ENV13 was to be applied lawfully. The policy was that normally any material loss would lead to refusal of permission. There might be other factors that meant that such a material loss was not unacceptable. But those would then need to be identified. Without determining whether the loss of light was material, whether the increased sense of enclosure and overlooking would be significant, and whether any overshadowing was unacceptable, no conclusion could be reached on whether the proposal was in accordance with ENV13. It followed that the defendants had reached their decision in breach of their obligations under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.
(4) Since it did not appear highly likely that the outcome for the claimants would not have been substantially different if the unlawful conduct had not occurred, the claim for judicial review succeeded.
Victoria Hutton (instructed by Glinert Davis LLP) appeared for the claimants; Meyric Lewis (instructed by the Director of Law, Westminster City Council) appeared for the defendants.
Eileen O’Grady, barrister
