Town and country planning – Planning permission – Judicial review – Claimant seeking to quash planning permission for development on adjoining site – Whether decision-maker taking account of immaterial considerations – Application granted
The defendant local authority granted planning permission for the development of 55 Victoria Street, St Albans, (the appeal site) involving the demolition of a two-storey retail building that stood on the site and the erection of a four-storey building providing office space and 11 residential units. The existing building was demolished following the grant of permission and the site remained vacant. Immediately to the west of the site was a two-and-a-half storey former office block owned by the claimant.
Before the planning permission for the development lapsed, the claimant started to market the flats it proposed to develop in its building, having obtained confirmation by the defendants that their prior approval was not required before it could change the use of the building from office to residential use in the form of 14 self-contained flats relying on the permission for such a material change of use granted by virtue of Class J in Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, as amended.
The interested party then applied for planning permission for the construction of a four-storey building on the appeal site providing office space and 14 residential units, comprising four one-bedroom and 10 two-bedroom flats, with associated car parking, cycle storage and landscaping. The defendants granted conditional planning permission for that proposed development notwithstanding objections made on behalf of the claimant. They considered that the development was in accordance with the national planning policy framework (NPPF) and local plan policies and was compatible with the character and appearance of the street scene.
The claimant applied for judicial review to quash the decision. It contended, in particular, that the defendants were not entitled to take into account the fact that the claimant had proposed to convert its own building to produce 14 self-contained flats when there was an extant planning permission for the erection of a four-storey building on the appeal site and that the impact of the proposed development on the amenities of occupiers of flats in the claimant’s building facing the appeal site (then under construction) would be similar to that which the development on the appeal site would have had.
Held: The application was granted.
(1) Whether any consideration was material in the determination of a particular planning application for the purpose of section 70(2)(c) of the Town and Country Planning Act 1990 depended on whether it was made material by another enactment expressly, or by necessary implication, or whether it was otherwise material in the circumstances of the case. In the present case, the matters in issue were not required to be taken into account by enactment, expressly or by implication, as being material in the determination of the application for planning permission.
(2) Whether a matter, which was not required to be taken into account by enactment, expressly or by implication, but which was capable in law of being material for planning purposes, was a material consideration in the determination of an application for planning permission involved a question of planning judgment for the decision- maker. It might be treated as material, or regarded as not being material by a decision-maker depending, for example, on whether it was reasonably related to the development proposed itself or whether planning permission should be granted for it. Any such planning judgment was subject to review by the court if it was not one that a decision-maker could reasonably have made in the circumstances: Westminster City Council v Great Portland Street Estates [1985] AC 651, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66, South Cambridgeshire District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 101, Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin); [2010] 1 P & CR 19 and R (on the application of Copeland) v Tower Hamlets London Borough Council [2010] EWHC 1845 (Admin), [2002] 1 WLR 759 considered.
(3) In the present case, assuming that the claimant itself could not reasonably complain about the effect of the development of the appeal site when it was itself prepared to convert its own building, given the existence of a similar development, that did not provide a rational basis for assessing the acceptability of impact of the proposed development on the east-facing flats in its building for the purpose of determining the application for planning permission. The fact, if it be so, that a developer could not reasonably complain about a proposed development nearby did not mean that the amenities which others who might live in its development would have (if the proposed development was permitted) were acceptable in the public interest. Planning permission was not simply a private matter. It was a decision of a public authority in discharge of statutory obligations the purpose of which was to serve the public interest.
In this case, the decision-maker had taken account of matters, when formulating and applying a test for determining the interested party’s application for planning permission, which no reasonable authority could have adopted for that purpose in the circumstances. Accordingly, the planning permission would be quashed.
Stephen Whale (instructed by Direct Access) appeared for the claimant; Guy Williams (instructed by St Albans City and District Council) appeared for the defendants.
Eileen O’Grady, barrister
