Judge quashes planning permission over failure to take into account rebuttal report on right to light

Neil Cameron KC, sitting as a Deputy High Court judge, said in his judgment section 31(2A) of the Senior Courts Act 1981 did not apply and quashed the permissions as the court could not know what decision the council would have come to had the correct information been considered.

The case was brought by Paul Knights over there council’s grant of permission for a two storey house next to his property, the application for which said it would not give rise to unacceptable losses of daylight, sunlight or cause unreasonable overshadowing of neighbouring private open spaces.

Mr Knights instructed Right Of Light Consulting (ROLC) to assess the impact of the proposed development on the daylight and sunlight visible at his property.

ROLC concluded:”The results confirm that the proposed development will have a very significant negative impact on our clients and their home.”

South Norfolk delegated the decision to its planning officer, whose report noted: “This new dwelling also has a sufficient distance to the boundaries on both the east and the west of the property, and as such this will not cause any overbearing impacts on neighbouring amenity and is acceptable.”

Mr Knights argued that South Norfolk’s decision was made without taking into account all material considerations: as there was no mention in the officer’s report of a rebuttal report he commissioned from ROLC to answer submissions by the developer, which in turn answered the original points made by ROLC.

He said the officer’s report also ignored the plotting of the buildings and the serious light impacts despite the calculations provided based on precision instruments and well-established analysis.

Mr Cameron said a challenge on the basis that a decision-maker failed to take into account a material consideration can only succeed if the consideration is made mandatory or it would be irrational not to consider facts that are obviously material.

South Norfolk argued it was wrong to characterise the ROLC rebuttal report as a material consideration and even if it was it could not be inferred that it was not taken into account.

The council said to conclude that a local planning authority had failed to take account of a material consideration every time a single document was not expressly mentioned in an officer's report would be unduly onerous.

Mr Cameron though found the officer’s report failed to take the matters referred to in the ROLC rebuttal report into account.

He said: “Those considerations were directly relevant to the factual basis on which the planning officer made her planning judgment.

“In my judgment that constitutes a failure to take into account material considerations. [That] was an error of law and on that basis, and for the reasons set out above, the ground of challenge is made out.”

Mark Smulian