Back to basics

Simon Ricketts analyses two High Court rulings this month which provide reminders as to some development management procedural fundamentals.

No this isn’t back to basics in a John Major way.

As a sorbet course to be enjoyed as a palate cleanser between the excitement last week of the general election and associated announcements and the excitement of further announcements promised by MHCLG (RIP DLUHC) later this month (plus this Wednesday’s King’s Speech), I thought we might look at a couple of Planning Court rulings.

R (Gurajena) v London Borough of Newham (Deputy High Court Judge Timothy Corner KC, 5 July 2024) – what is the extent of the duty on a local planning authority to (1) notify “adjoining” owners and occupiers of an application and (2) publicise changes made to an application after initial consultation has taken place?

This case concerned a planning permission for works to a terraced house at 5 Silver Birch Gardens, West Ham. The proposed works comprised the construction of a rear extension, rear garden decking and an outbuilding. The grant of permission was challenged by way of judicial review by the next door neighbour at no 6 and another neighbour two houses away at no 8. They had objected to the application on grounds of privacy, overlooking and effect on visual amenity (although no 8 had not been notified of the application by the council, despite having been consulted in 2022 in relation to a proposed dormer loft extension and associated works to the roof).

Once the permission had been issued the claimants had realised that amended drawings had been submitted after their objections had been received, changing the location of the stairs to the decking and replacing a close boarded timber fence between numbers 5 and 6 with the retention of a low picket fence. The claimants argued that there was (1) a breach of Article 15 (5) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (which requires that “adjoining” owners and occupier be notified) given that no 8 had not been notified (2) a breach of no 8’s legitimate expectation that they would be consulted (having been consulted over the 2022 application) and (3) procedural unfairness by way of the council’s failure to carry out any further consultation despite a material change to the application after the close of the consultation period.

The judge held:

• “’adjoining’ in Article 15 of the DMPO embraces not just properties which are contiguous, but also those which are “very near to” or “lying close to” the application site”…”Whether one site is “very near to” or “lying close to” another requires judgement, and that judgement is one for the local planning authority. The court will interfere with the authority’s judgement only if it is Wednesbury unreasonable, by reason of being a judgement that is so unreasonable that no reasonable authority could have reached it.” The council’s decision in this case could not be impugned as being unreasonable.
• “In my judgement the Second Claimant did not have a legitimate expectation that she would be consulted about the Application. The reality is that a judgement was reached in the case of the 2022 application as to whom to consult, based on the anticipated impact. The Application in the present case was different, being at ground floor level only. The fact that no. 8 was consulted once about a planning application different in nature from the Application does not amount to a practice of consultation sufficiently settled and uniform to amount to a clear, unambiguous and unqualified promise to consult the Second Claimant on a planning application having the nature of the Application.”
• The application plans were confusing and there was clearly confusion as to what was shown on the original application plans and therefore as to the extent to which the revised plans amounted to changes to the proposals which had previously been consulted upon. The judge found that the first claimant had already made clear in her objections that even a close boarded fence in place of the existing low picket fence would not be acceptable so there was no requirement to re-consult her on that aspect. However, in relation to the stairway to the decking: “I accept that an assessment of whether the outcome for the First Claimant might have been different (i.e. refusal of the Application) had she had the chance to comment on the realignment of the stair must take account of the context, which is the Application as a whole. The Application comprised erection of an extension, with raised timber deck and a new outbuilding on the deck. The stair to the deck was only a part of the Application as a whole. However, in my judgment the position and orientation of the new stair is capable of having an important effect on the privacy of no. 6.”

The permission was quashed on that final ground. Lesson: local planning authorities (and applicants) should be careful to ensure that plans are accurate and comprehensible and that revisions which may have a material effect on potential objectors are adequately publicised.

Lidl Great Britain Limited v East Lindsey District Council & Aldi Stores Limited (Deputy High Court Judge Dan Kolinsky KC, 2 July 2024) – when should applications for planning permission for competing developments be considered at the same planning committee?

For the detail please see my colleague Sophie Bell’s Town Library summary but, very briefly, the case concerned competing planning applications for supermarkets in Horncastle. There would be a significant adverse impact on the town centre if both developments were to proceed. Lidl’s and Aldi’s applications were both due to go to the same committee meeting but there was a hold-up with Aldi’s application and so only Lidl’s application was taken to the committee, where it was approved. The judge held that the council was required to consider the competing merits of the two schemes but failed to do so properly by considering the applications separately: “the need for a comparison was “so obviously material” as to ” require direct consideration”.

This was certainly “store wars” nostalgia for some of us! It is a useful case to help guide what should be done where applications for competing developments have been submitted, although the judge does warn that his “decision is not based on accepting [the] proposition that there is a special category of cases which applies to rivals. I consider that this contention underplays the importance of the particular facts of the case. To make generalisations about categories of cases risks oversimplification. It fails to heed the warnings that there is no “one size fits all” approach (per Sullivan LJ in R (Langley Park School) v Bromley LBC [2010] 1 P&CR 10 at para 52) and that categorisation can be “dangerous” (per Oliver LJ in GLC)… the specific evidential circumstances of this case is one in which there are two proposals before the authority aiming to address what on the evidence has been found to be finite retail capacity (without causing significant adverse impact on the town centre). Those are the uncontentious facts which mean that in the specific circumstances of this case a comparison was necessary (and was not undertaken). Moreover, as I have found, the reason for declining to undertake it reveals a logical gap in the Defendant’s decision making.”

There, I hope you’re suitably refreshed. I’m sure something more substantial will be served up before too long.

Simon Ricketts is a partner at Town Legal. This article first appeared on his Simonicity planning law blog.