Planning application — Material consideration — Boundary between two planning authorities — Adjacent authority objecting to development — Authority not objecting in writing within time limit — Local authority granting permission — Objectors applying for judicial review — Whether source of objection affecting weight to be attached to objection — Claim allowed
A developer (the interested party) applied for planning permission for the development of a property that contained some residential accommodation with a basement restaurant. The claimants objected on the ground of amenity, largely on the basis of noise and of persons frequenting the premises. There were also substantial highway objections on traffic safety grounds.
The defendants were the local planning authority for the side of the road on which the property was situated. However, the council boundary ran along the middle of the road, planning control was exercised on the other side of the road by another authority (Westminster), which was an obligatory consultee in respect of the planning application. Westminster were unhappy with the application on grounds of possible harm to residential amenity by restaurant use, pedestrian congestion in the street and other highway issues. However, they did not submit an objection within the requisite period.
Westminster subsequently submitted a written objection but this had not been filed and, as a result, the planning committee were unaware that Westminster had objected to the proposal. The defendants subsequently granted planning permission. The claimants applied for judicial review contending that the defendants had failed to have regard to a material consideration, namely that Westminster had objected and the terms of their objection.
The defendants submitted that: (i) the author of an objection was irrelevant; (ii) they had, in fact, considered the substance of the objections put forward by Westminster; and (iii) the grant of planning permission should therefore stand.
Held: The claim was allowed.
It was clear that there had been a failure to have regard to a material consideration. The defect was not such that, notwithstanding the error, the decision would have been the same. Accordingly, the permission could not stand and should be quashed.
It was self-evident that the source of an objection might affect the weight to be attached to it.
In the present case, the planning committee might well have attached greater weight to the objections had they been aware that Westminster supported them. No sensible planning committee would countenance a planning application fronting a road that formed the boundary between two planning authorities without first liaising with the adjacent authority as to the effect of the development.
Gregory Jones (instructed by Bindman & Partners) appeared for the claimant; Peter Harrison (instructed by London Borough Council) appeared for the defendant; Nathalie Lieven (instructed by Richard Max & Co) appeared for the interested party.
Eileen O’Grady, barrister
