Planning permission – Mistake of fact – Judicial review – Claimant applying to quash decision of defendant local authority to grant planning permission for mixed use development – Whether mistake as to effect of proposal on daylight within nearby school playground being ground for judicial review – Application granted
The interested party applied for planning permission to erect a three-storey building comprising a café at basement and ground floor level and two one-bedroom flats at first and second floor, with associated cycle parking. The site was a vacant triangular parcel of land forming the apex of the junction of Birkbeck Road and Colvestone Crescent, Dalston. To its north lay a primary school. Both the site and the school lay within a conservation area. The school was a Grade II listed building. The application site had been occupied by buildings in the past which were closer to the school building than the currently proposed development. Between the school and the northern edge of the appeal site lay an open area forming part of the school’s curtilage bounded by walls.
The interested party had commissioned a “sunlight and shadow assessment” which had been submitted to the defendants before they determined the application. It calculated sunlight hours for the 21st day of each month of the year at 10.45 am, 12.45 pm and 2.45 pm. The assessment showed that external spaces should receive two hours of direct sunlight on 21 March over at least 50% of the area in question. It regarded that as a modest increase in overshadowing and concluded that the scheme could be considered acceptable in planning terms. The report made an erroneous assumption that the boundaries of the playground area were fenced in such a way that they admitted light.
There were a number of objections to the application, including those relating to loss of daylight to the school and the degree of overshadowing. Concerns were expressed that the development would block out sunlight from the school’s external area and about the accuracy of the assessment. However, the defendants resolved to grant permission. The claimant objector applied for judicial review contending, among other things, that the assumption that the school’s open area was bounded by fences rather than walls, and its consequent effects on the daylight assessment, was an error of fact constituting a ground for judicial review.
Held: The application was granted.
(1) Taking into account a mistaken fact could be absorbed into a traditional legal ground of review as the taking into account of an irrelevant consideration or the failure to provide reasons that were adequate or intelligible or the failure to base the decision upon evidence. Failure to take account of a material consideration was only a ground for setting aside a decision if the statute expressly or impliedly required it to be taken into account. That might be an accurate way of characterising some mistakes; for example, a mistake about the development plan allocation, where there was a specific statutory requirement to take the development plan into account. But it was difficult to give such status to other mistakes which caused unfairness; for example whether a building could be seen or whether the authority had carried out a particular form of study. Reasons were no less adequate and intelligible because they revealed that the decision-maker fell into error; that was one of the purposes of requiring reasons. A mistake of fact giving rise to unfairness was a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties shared an interest in co-operating to achieve the correct result. There must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. The fact or evidence must have been established, in the sense that it was uncontentious and objectively verifiable. The appellant (or his advisers) must not have been responsible for the mistake and the mistake must have played a material, not necessarily decisive, part in the reasoning: Re Findlay [1985] AC 318, Jagendorff v Secretary of State for the Environment [1987] JPL 771, Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306 and E v Home Secretary [2004] EWCA Civ 49; [2004] QB 1044 considered.
(2) In the present case, the assessment was treated as authoritative by the officer in his advice to the committee and a misleading picture (albeit without any intention to mislead) had been created to the disadvantage of the objectors (including the claimant) on a critical issue. While there was still some disagreement on the effect of the error, there was no dispute that there had been an error, nor that it related to how one modelled the flank walls of the playground. Therefore, that criterion was met. The claimant was not responsible for the mistake. The effect of the new statutory test in section 31(2A) of the Senior Courts Act 1981, as amended by Criminal Justice and Courts Act 2015, was that the mistake played a material (not necessarily decisive) part in the tribunal’s reasoning. Accordingly, the error, and the assessment which flowed from it, played a material part in the decision making process. While the assessment still showed an excess over the 50% benchmark, the assessments on both sides of the argument showed a significant reduction in daylight, and the description of being “comfortably met” was not one which could necessarily be read across from the first assessment to its successor. Although the defendants were not required to give reasons for their decision, that matter assumed importance at the meeting and the firm terms in which the officer advised the committee. Accordingly, that ground of challenge was made out.
Christopher Jacobs (instructed by Dowse and Co, of Dalston) appeared for the claimant; Giles Atkinson (instructed by Director of Legal and Democratic Services, Hackney London Borough Council) appeared for the defendants; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
