Town and country planning – Planning permission – Consultation – Interested parties applying for planning permission for rear extension to terraced house – Defendant local planning authority consulting properties next door to and joining application land – Claimant neighbours objecting but defendant granting permission – Claimants applying for judicial review – Whether defendant failing to act with procedural fairness – Application granted
The defendant local authority granted an application for planning permission (part retrospective) by the interested parties for the construction of a rear extension, rear garden decking and an outbuilding at 5 Silver Birch Gardens, East Ham, London.
The property formed part of a terrace of modern houses which all had gardens with a small area of flat land immediately to the rear, with the remaining part of the gardens sloping steeply upwards. Raised decking at the application site was built because the slope of the garden limited its utility. The decking was 1.65m above the level of the flat part of the garden.
The claimants lived at 6 and 8 Silver Birch Gardens respectively. They objected to the application on the basis of loss of privacy, impact on daylight/sunlight, outlook and visual amenity/design. They applied for judicial review alleging, amongst other things, that the defendant failure to act with procedural fairness because: (i) its consultation on the application was in breach of article 15(5) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) because the second claimant was not consulted; (ii) there was a breach of the second claimant’s legitimate expectation that he would be consulted on the application; and (iii) there was a material change to the application after the close of the consultation period, and the defendant’s failure to carry out any further consultation was procedurally unfair.
Held: The application was granted.
(1) The DMPO set out the legislative requirements for local planning authorities in relation to publicity for planning applications. Article 15(5) stated that the publicity requirements were either: by site display in at least one place on or near the land to which the application related for not less than 21 days; or by serving the notice on any adjoining owner or occupier. Article 15(10) of the DMPO defined “adjoining owner or occupier” as meaning “any owner or occupier of any land adjoining the land to which the application relates”.
In its context, the word “adjoining” in article 15(5) and (10) of the DMPO ought not to be given a narrower meaning than the same word in paragraph AA.2(3)(a)(i) of the Town and Country Planning (General Permitted Development Order) 2015. The aim of both provisions was to ensure that the interests of those who might be affected by proposals for development were considered.
The meanings given for the verb “adjoin” in the New Shorter Oxford English Dictionary included “lie close to each other” and “lie close or be contiguous to”. Therefore, “adjoining” in article 15 embraced not just properties which were contiguous, but also those which were “very near to” or “lying close to” the application site. Nevertheless, whether a property in the vicinity of a proposed development site fell within the definition of “adjoining” was a matter of judgment in each case for the local planning authority. The concepts of “very near to” or “lying close to” were not absolute in the way that “contiguous” was. The court would interfere with the authority’s judgment only if it was Wednesbury unreasonable, as a judgment that was so unreasonable that no reasonable authority could have reached it: R (on the application of Corbett) v Cornwall Council [2021] EWHC 1114 (Admin) and CAB Housing v Secretary of State [2023] PTSR 1433 applied.
(2) In the present case, the defendant made its judgment about whom to consult in relation to the application. It consulted the properties on either side of the application site, as well as 7 Silver Birch Gardens, to the east of No.6. The second claimant’s property was to the east of No.7, ie, next-door-but-two to the application site. The judgment of the defendant in deciding whom to consult could not be said to be so unreasonable that no reasonable authority could have reached it. Accordingly, the defendant’s failure to consult the second claimant about the application did not contravene article 15 of the DMPO.
(3) The second claimant did not have a legitimate expectation that she would be consulted about the application. The reality was that a judgment was reached in the case of an earlier 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 in question did 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. Therefore, the test in CCSU v Minister for the Civil Service [1985] AC 374 and R (on the application of MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634; [2021] 4 All ER 326, which established that a legitimate expectation might arise from a past practice of consultation, was not met in this case.
(4) In deciding whether it was unfair not to carry out a second consultation on a planning application, it was necessary to consider whether not doing so deprived those who were entitled to be consulted on the application of the opportunity to make any representations that, given the nature and extent of the changes proposed, they might have wanted to make on the application as amended: R (on the application of Holborn Studios Ltd) v London Borough of Hackney and another [2017] EWHC 2823 (Admin); [2017] PLSCS 207; [2018] PTSR 997 considered.
In the present case, the defendant should have re-consulted the first claimant after the application plans were amended in relation to the fencing on the boundary with her property. The court would not refuse relief under section 31(2A) of the Senior Courts Act 1981 because it could not say that, if the first claimant had been re-consulted, the outcome would highly likely have been the same. It was realistically possible that, had the first claimant been given the opportunity to make known her views, the application would have been refused. Therefore, the decision had to be quashed.
The claimants appeared in person; Stephanie Bruce-Smith (instructed by Newham London Borough Council) appeared for the defendant; The interested parties did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Gurajena and another) v Newham London Borough Council
