Norton & Ors, R (on the application of) v London Borough of Lambeth

This is an application for permission to apply for judicial review of a decision dated 1 December 2006 made by the defendant, Lambeth London Borough Council, to grant planning permission for the erection of two houses on land adjoining 70-72 Mount Nod Road, London SW16.

On 24 April 2007 Collins J directed a rolled-up hearing, stating:

“It seems to me to be arguable that the objectors were not treated fairly as a result of the change of approach from planning committee to delegated and the explanation in the Acknowledgement of Service in relation to the 45º rule of thumb is not particularly convincing. But delay is an issue - it is of importance that attacks on planning permissions are made promptly. Accordingly I direct a ‘rolled-up’ hearing. If permission is granted, full determination to follow immediately.”

I did not deal with the issue of delay as a preliminary point in case the merits of the claimants’ case turned out to be relevant to a decision on the issue of delay.

The claimants are ten local residents who were amongst 50 or so objectors to the proposed development. Mr Norton, who has plainly taken the lead in the making and co-ordinating of the objections, appeared in person to represent the claimants, assisted by Ms Stack, another of the claimants.

There is a planning history to the proposed development of the site involving three previous refusals, one of which was an appeal to which it will be necessary to refer. However, the fourth application was permitted by the defendant on 1 December 2006. These judicial review proceedings were not commenced until 28 February 2007, that is to say, on the last day of the three-month period referred to in CPR Rule 54.5 (1). That rule also requires the claim to be filed promptly. That leads me to the first issue in the case, namely delay.

Mr Norton’s explanation for the delay is as follows. The letter from the defendant informing objectors of the grant of planning permission was not received until the week of 11 December 2006. Mr Norton was committed to go to Ireland on 19 December, returning on 23 December, after which there followed the Christmas and New Year holidays. He took until the end of January 2007 to canvas objectors to obtain their agreement to seek and pay for legal advice on the possibility of making an application for judicial review. Most of that work had to be done at weekends because he and most of the other objectors are in full-time employment.

Mr Norton then prepared the material for solicitors to obtain counsel’s opinion, sending the material to the solicitors on 7 February 2007. Counsel’s opinion was obtained on 14 February 2007. The advice was that judicial review of the defendant’s decision was not certain of success. It had been agreed by the claimants that they would not proceed unless there was a high degree of certainty. However, at that stage it had not been appreciated by anyone that the defendant had allegedly used what has been referred to as the 45-degree rule inappropriately. That is a reference to an approach to assessment of the effect of a development on daylight and sunlight of existing habitable rooms contained in Building Research Establishment Report 209 (“BRE 209”) and which is now the subject of the first ground of the claim.

On 19 February 2007, whilst reviewing the files prior to archiving them, Mr Norton realised that the defendant may have used the 45-degree rule incorrectly. The next day he telephoned Mr Fullove, the defendant’s team leader of Lambeth South Planning, to tell him of his discovery. He agreed to look at the files and he also agreed that it would be preferable to avoid judicial review if possible. In the meantime, Mr Norton consulted an expert in this field who confirmed on 22 February that the defendant had used the 45-degree rule incorrectly and that they should have used the 25-degree rule. Mr Norton telephoned Mr Fullove on two further occasions on 24 and 27 February, but each time he said he had been too busy to look at the file. The judicial review claim was therefore filed on 28 February so as to ensure that it was within the three-month period.

Mr Norton drew my attention to the observations of Lord Steyn and Lord Hope in R v LB Hammersmith and Fulham ex parte Burkett [2002] UKHL 23 doubting whether the obligation in CPR Rule 54.5(1) to file the claim form “promptly” was sufficiently certain to comply with European Community law and the Human Rights Convention, but, as Miss Sabic pointed out on behalf of the defendant, Pill LJ in R (Young) v Oxford City Council [2002] EWCA Civ 990 made it clear that that issue had not been resolved by the House of Lords, and that, until it was, the rule relating to promptness should not be ignored. Pill LJ had said that the application of the promptness test involves a judgment by the court depending on the particular circumstances of the case. The public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision.

Miss Sabic submitted that the claim had not been filed promptly and that there was no good reason for the delay. She submitted that the inaction in December 2006 was inexcusable and that the whole of January 2007 being taken up by canvassing objectors was excessive. She contended that the failure to identify the 45-degree rule point was not a good reason for the delay because the claimants had received legal advice which had failed to identify the point. She relied on prejudice to the interested parties, in particular Mr and Mrs Desai, owners of the rear part of 72 Mount Nod Road. Mr Desai had written a letter to the court complaining of the effect of delay on their expected return from developing the site.

Looked at objectively, it can hardly be said that a claim filed on the last day of the three-month period was filed promptly. It may be said that some initial action could have been taken in December 2006 after receiving notification of the decision in the week commencing 11 December, but Mr Norton had a pre-existing commitment to go to Ireland on 19 December for five days, which was followed by the Christmas and New Year holidays. At first sight it does appear excessive to have taken a month to canvass objectors to seek their approval and to obtain financial contributions from them for a legal opinion, but there were about 50 objectors to canvass and most of the work had to be done at weekends. It is understandable that that would take a considerable time.

Thereafter the legal opinion was swiftly obtained. A few days later, the alleged 45-degree rule error was discovered and the defendant was notified of it but failed to respond to the point, which necessitated the initiation of proceedings.

There is, therefore, a plausible explanation for the delay in this case. In considering whether it is sufficient to allow the claimants to proceed with their claim, I bear in mind, that except for a period of about a week in February 2007, they were not legally represented. Even then, the solicitors were, I was told, simply acting as a postbox to get counsel’s opinion. It was not surprising that counsel was unaware of the alleged 45-degree rule error because there would have been nothing in his instructions to alert him to it. It is significant, when considering the issue of delay, that the claimants only became aware of that alleged error about ten days before the end of the three-month period. Had it not been for the discovery of that alleged error, it would seem on the evidence before me that, in view of counsel’s advice, they would not have commenced proceedings. Bearing in mind the complex nature of daylight/sunlight criteria and the fact that the claimants are not experts in that field, it would be harsh to criticise them for not discovering the alleged error earlier.

I have taken into account the possibility of prejudice to other parties, but the only evidence before me on that subject is from Mr Desai. He complains that further delay may result in some financial loss due to the changing economic climate and that their expected return from developing the site which would be part of their pension plan would be depreciated.

I know nothing of their contractual arrangement with the developers, but those assertions seem to me to be pure conjecture. There is no evidence of prejudice from the developers who are the other interested parties. This is not a case where development has already commenced. In those circumstances, I do not consider that this is a case where prejudice to other parties outweigh other considerations. The claimants have a strongly arguable point on the alleged 45-degree rule error. Whether it is sufficient to succeed is a matter which I will come to. However, taking into account all the matters I have mentioned, and despite the need to act promptly particularly in planning cases, I have come to the conclusion that it would not be appropriate in the particular circumstances of this case to refuse permission to apply for judicial review on the ground of delay.

I turn then to consider the merits of the claim. Mr Norton, who presented the claimants’ case in an admirably clear and measured way, did not pursue the third ground contained in the claim form. He limited his submissions to two grounds: firstly, the alleged 45-degree rule error and, secondly, the alleged breach of legitimate expectation that the application would be decided by the planning committee. I have already mentioned that the first ground is strongly arguable. I therefore grant permission on that ground and, in the circumstances, it would therefore be appropriate to grant permission on the second ground as well, bearing in mind that I have heard full argument on it.

I turn to deal first with the 45-degree rule point. This point relates to the effect of the proposed development on the daylight and sunlight requirements of a neighbouring property, 1 Stockfield Road, which has French windows in the flank wall adjoining what has been called house B of the proposed development. Although the two semi-detached houses, houses A and B, are proposed on land to the rear of 70-72 Mount Nod Road, they would front Stockfield Road next to 1 Stockfield Road. The land slopes down quite steeply from Mount Nod Road so that the ground level of House A is higher than House B, which is higher than 1 Stockfield Road.

As I mentioned previously, there were three previous applications on this site, all of which were refused, the last one being refused on appeal. That last application had been refused by the defendant on a number of grounds but the Inspector on appeal only upheld the ground relating to the effect of the proposed development on 1 Stockfield Road. It is necessary to refer to what the Inspector said about that because it is central to the way in which the defendant considered the present application. At paragraphs 19 to 21 of his decision letter, the Inspector stated:

“19.

Nevertheless it is my view that the scheme would fail to avoid impact on No 1 Stockfield Road. In particular, the proposed development would be clearly visible from the ground floor, side facing french windows. While I note that there appears to be a discrepancy in the applicants submitted drawings as to the correct position of the proposed development in relation to No 1, I am satisfied that the depth of the new houses would project sufficiently rearwards so as to interfere with the passage of light to the affected window, in particular during the latter part of the day.

20.

Given the combination of its scale, bulk and massing, together with its position on higher ground, combined with the presence of properties in Mount Nod Road at a still higher level, the development would, in my opinion, appear oppressive and overbearing to the occupants of No 1, Stockfield Road, as well as causing the loss of light to which I have referred.

21.

I conclude, therefore, that the proposed development would cause a significant deterioration in the living conditions of the occupants of the neighbouring property at 1 Stockfield Road by reason of its overbearing appearance and loss of light and would conflict with policies H10, H16 and CD15 of the adopted UDP.”

In the present application, the developers sought to overcome those objections by making a number of amendments to the proposal. That application was considered by the defendant’s delegated panel in their report dated 1 December 2006 which, it is agreed, constitutes the reasoned decision in this case and upon which the first ground of the claimants’ case is founded.

Having referred to the Inspector’s conclusion relating to the effect on 1 Stockfield Road the report stated at paragraph 6.20 to 6.24 as follows:

“6.20.

The applicant has submitted an altered design for both properties in order to address these concerns. Property A is the same size as previously refused. However, it has been set forward towards Stockfield Road so that it [is] only set back 0.6m from No 1 Stockfield Road as opposed to 2.5m as per the previous application. It therefore extends 2.2m from the rear of the main part of 1 Stockfield Road as opposed to 4.5m as per the previous application. There is also a single-storey conservatory proposed to the rear. The roof is the same height as the previously refused application, however it is now hipped at both ends. The rear of Property A extends 0.2m further to the rear than Property B. This part of the proposal is two storeys in height.

6.21.

The bulk and massing of property B adjacent to 1 Stockfield Road has been substantially reduced. The building has been moved forward so that it is in line with no. 1 Stockfield Road. The main part of the property does not extend beyond the main part of no. 1 Stockfield (sic). The part of the proposal adjacent to the flank wall of no. 1 Stockfield Road that contains the French windows has been set away from the boundary by 4m and by 6m from the French windows. This was the main area of concern raised by the Inspector regarding overshadowing of No. 1 Stockfield Road. The set-back part of property B comprises a sloped roof extension with dormer window sloping from 5m to 2.8m in height rather than the previous two-storey full width extension that formed part of the previous application. The height of property B has been reduced by 1 metre from the previous refused application.

6.22.

It is considered that the reason for dismissal at appeal has been addressed as part of this application. Property A lies 10 metres from the side French windows at 1 Stockfield Road and extends across three-quarters of the windows. Property B lies 6.7 metres from the French windows.

6.23.

Both properties satisfy the 45-degree rule. no part of either building crosses the line drawn at a 45-degree angle from the centre of the French windows. It is considered that the reduction in height and bulk of property B, and that both properties have been moved forward, has substantially reduced the impact of the proposal on 1 Stockfield Road in terms of loss of light and sense of enclosure. It is therefore considered that this proposal complies with policies H10 and H16 and Standards ST1, ST3 and ST5 of Adopted UDP and Policies 7 and 32 of the Revised Deposit UDP.

6.24.

In summary it is considered that the ground of refusal relating to the previous planning application for housing on the subject site (05/01239/FUL) has been overcome.”

The first ground of the claimants’ case relates to the first sentence of paragraph 6.23, namely:

“Both properties satisfy the 45 degree rule: no part of either building crosses the line drawn at a 45-degree angle from the centre of the French windows.”

The claimants submit that the defendant was wrong to have used the 45 degree rule and that they should have used the 25 degree rule in accordance with the advice in BRE 209. Those rules are used to see if a more detailed assessment is required. Under the 25 degree rule the advised procedure is to ascertain whether the new development subtends a line drawn at 25 degrees to the horizontal. If the whole of the development is below that line it is unlikely that the proposals will have a substantial effect on the sky light enjoyed by the existing building, but if any part of the proposed building does subtend that line a more detailed check is required.

The 45 degree rule mentioned in BRE 209 appears to relate to extensions but, more importantly, it is expressly stated not to be valid for windows which directly face the extension or for buildings opposite. Figure 7 of that document illustrates that point, showing the approach to be valid only for a window perpendicular to the extension and not for windows that directly face it. In this case the claimants submit that the French windows in the flank wall of 1 Stockfield Road directly face House B so that it was incorrect to use the 45-degree approach and that the 25-degree approach should have been used. Their calculations show that the 25-degree approach would have revealed an angle significantly in excess of 25 degrees, necessitating a more detailed assessment.

After revisions had been made to the present application, both Mr Norton and Mr Giles, the occupant of 1 Stockfield Road, wrote further objection letters dated 17 November 2006, the latter containing some detailed calculations, both letters requesting among other things that a daylight sunlight study should be carried out. Complaint is made that those letters, particularly Mr Giles’ letter, were not addressed or even mentioned in the delegated panel report. Mr Norton said that when he inspected the defendants’ files he found those two letters separately from the others, in a pocket with the plans.

Miss Sabic submitted on behalf of the defendant firstly that the 45-degree rule was applied correctly, secondly that, even if it was not, it made no difference to the overall conclusion, thirdly that the claimants had failed to show that there was a duty to apply the 25 degree rule or that there was a duty to carry out detailed assessment, and fourthly that the delegated panel’s report dealt with the substance of the points raised in the letters from Mr Norton and Mr Giles.

In considering those submissions, I am not assisted by any witness statement on behalf of the defendant. That is a significant omission because such a witness statement would have assisted the court on a number of the submissions.

In dealing with her first submission, namely that the 45-degree rule was applied correctly, Miss Sabic sought to rely on a line which had apparently been drawn by a planning officer on the block plan from the nearest corner of House B to the French windows of 1 Stockfield Road, it being suggested that it was perpendicular to the French window and showed a 45 degree angle, but as Mr Norton pointed out, and as Miss Sabic eventually accepted, even if it was perpendicular (which it seems to me it is not) it purports to show a 45-degree angle from a notional wall that does not exist.

In the absence of any assistance from a witness statement on behalf of the defendant, I am forced to conclude on the evidence before me that the 45 degree rule was not applicable in this case and that the delegated panel were wrong to apply it in the circumstances of this case.

That brings me to Miss Sabic’s second submission that if there was such an error, it made no difference to the decision. She submitted that it was clear from the delegated panel’s report that the panel had reached its conclusion in paragraph 6.22 based on its consideration of the matters referred to in paragraphs 6.20 and 6.21, and that the mention of the 45 degree rule in paragraph 6.23 was simply reinforcing that conclusion and was not determinative because the conclusion had already been reached in paragraph 6.22.

I thought initially that there was some force in that submission, but on reflection, I am not persuaded that it is correct. It is evident that the delegated panel were, quite correctly, addressing the criticisms of the Inspector relating to the effect of the development on 1 Stockfield Road, but paragraphs 6.20 and 6.21 are simply reciting the changes that had been made. Paragraph 6.22 simply states that the application had addressed the reason for dismissal at appeal. That is correct: The application had addressed the reason for dismissal. It is quite another thing whether it had overcome the reason for dismissal. Paragraph 6.22 does not say that it had overcome it. If it were to be so construed, it gives no reason for such a conclusion. It is paragraph 6.24 which states that the ground for refusal has been overcome. It was plainly considered to have overcome the ground for refusal for all the reasons given in the preceding paragraphs and particularly paragraph 6.23 in which not only is reliance placed on the 45 degree rule but also a conclusion is reached relating to the reduction in height and bulk of house B and the movement forward of both houses, matters which had been referred to purely factually in paragraphs 6.20 and 6.21.

I am therefore satisfied that reliance was placed on the 45 degree rule as part of the reasoning for the conclusion that the ground of refusal was overcome. I have already concluded, on the information available to me, that the 45 degree was not applicable in the circumstances of this case. The defendant therefore took into account an irrelevant consideration. I do not accept Miss Sabic’s submission that the claimants have to show that there was a duty to apply the 25 degree rule and/or to carry out a detailed assessment. The fact is that the delegated panel thought it necessary and appropriate to use BRE209, from which the 45 degree rule is derived. The fact that they thought it appropriate to do so is not surprising because policy H10 of the Unitary Development Plan states that all residential development proposals will be assessed against the Plan’s appropriate Residential Development Standards, one of which is ST3 dealing with daylight and sunlight, which itself states that BRE209 provides advice on site layout planning to achieve good sunlighting and daylight within buildings.

Having thought it necessary and appropriate to use BRE209, it behoved the panel to use it correctly. It is now for them to apply it correctly and to consider the result of doing so. That may or may not lead to the need for a detailed assessment - that is for the defendant to decide. The defendant may or may not come to the same conclusion as did the delegated panel on 1 December 2006, but it is a matter that should be considered, taking into account the correct application of BRE209. I would therefore quash the decision of 1 December 2006 on this ground.

I can understand Mr Norton’s suspicion that his letter and Mr Giles’ letter of 17 November 2006 were not taken into account but there is insufficient evidence before me to conclude that that was so. However, as the defendant will now have to consider the application again, there will be an opportunity for them to make fresh representations on this subject.

I turn finally to the second ground, namely legitimate expectation that the application would be decided by the planning committee. The facts relating to this ground are derived from Ms Stack’s witness statement, there being no witness statement from the defendant.

In April 2006 Ms Stack submitted to the defendant the objections to the proposed development from 47 households, and at the end of her accompanying letter she asked to be informed in advance when the application would be considered by the planning committee, as a large number of residents wished to attend. As a follow-up she telephoned the case officer in May 2006, who asked her to inform the other objectors that there would be a meeting of the planning committee to decide the application, when they could express their objections. In the week commencing 17 July 2006, fearful that the planning committee meeting might be held in August when people would be away on holiday, Ms Stack telephoned the defendant and spoke this time to Mr Mulindwa, the Deputy Team Leader. He initially told her that he did not think it would go to the planning committee but he said that he would discuss it with his colleagues and get back to her. He rang the next morning and informed her that there would be a meeting of the planning committee because of the number of objectors involved and that the earliest meeting would be in September.

In the autumn of 2006, Ms Stack telephoned the case officer about the time period allowed for making further representations about revisions that had been made to the planning application. It was in the course of that conversation that the case officer revealed that the matter would be decided by delegated authority, apparently due to the pressure put on them by the applicants, who were threatening to appeal on the basis of non-determination. In the light of that information, Mr Norton and Mr Giles in their letters of 17 November 2006 referred to the possibility of judicial review because their right to make representations to their elected representatives and to have the matter decided by them had been abrogated. Subsequently, on 1 December 2006, the application was decided by officers under delegated authority. A councillor had tried to call it in but it was too late to do so.

It is submitted on behalf of the claimants that there were unequivocal assurances by two planning officers, (one of them a senior planning officer who had consulted colleagues) that the application would be decided by the planning committee, which created a legitimate expectation that the application would be decided in that way; and that by deciding the matter by delegated authority there was a breach of that legitimate expectation, which had caused prejudice to the objectors because they have been deprived of the opportunity of having the application decided by their elected representatives, who might have overturned the officer’s recommendation.

Whilst I have considerable sympathy with the claimants’ point I am afraid that it does not amount to an error of law. As Miss Sabic said, the claimants had been told by 17 November 2006 that the matter would be decided by delegated authority and they had an opportunity, which they took, of making further representations. I appreciate that they were only told of the change in procedure by chance in conversation rather than by official notification, which does appear discourteous, but the fact of the matter is that they did then know about the change in procedure and acted accordingly. It was not as if they never knew about it and only discovered it after the event, without having had the opportunity of making any representations about it. The fact that the assurances were given in the first place cannot bind the defendant to that course of action, at least in the circumstances of this case.

I therefore conclude that the claimants’ second ground is not made out. I would only add that although I do not know the defendant’s rules about deciding applications under delegated authority I do find it somewhat surprising that it was thought appropriate to decide this case under delegated authority in view of the large amount of objections which the planning application had generated.

For the reasons I have given, the second ground of this claim therefore fails but the claimant succeeds on the first ground, and accordingly the decision of 1 December 2006 will be quashed on that ground.