Vieira, R (on the application of) v London Borough of Camden & Anor

The Claimants seek judicial review of the Defendant’s decision to grant retrospective planning permission to the Interested Party for a conservatory and trellis screen at her flat.

The Claimants contend that they had a legitimate expectation that they would be consulted on a revised drawing; that the officers’ report and drawing would be made available for comment; and that officers would consult a Members Briefing Panel on whether the application should be referred to the Development Control Committee.

The Defendant submits that no legitimate expectation arose; alternatively, that any departure from standard procedures was justified and did not cause unfairness to the Claimants. Finally the Defendant argues that, even if the Claimant establishes that it erred in law, the Court should exercise its residual discretion not to quash the decision because there is no real prospect of a refusal of planning permission.

The Claimants are the owner occupiers of a house at 18 Regent’s Park Road London NW1 (hereinafter ‘No. 18’). The Interested Party lives in the upper ground floor flat at 16A Regents’ Park Road London NW1 (hereinafter ‘No. 16A’). The houses are adjacent terraced houses within a conservation area.

In 1987, the Defendant granted planning permission for the construction of an extension to the rear of No. 16A, which included a conservatory attached to the rear of the upper ground floor, which had steps leading down into the garden. At that time, the proposal for the steps to be situated adjacent to the boundary was amended and they were re-positioned on the other side of the conservatory from No. 18.

In 2009, the Interested Party built a replacement conservatory without first seeking planning permission. The new conservatory has sliding doors, which lead out to an external balcony, about 1 metre in depth. The steps down to the garden have now been moved to the other side of the conservatory so that they are immediately adjacent to the boundary fence with No. 18. Access from the garden is up a flight of 4 steps to a large podium, and then on to a smaller stepping stone up to the external balcony.

Photographs show that a person of average height standing on the podium would be at waist height to the existing close board fence, and would have a clear view into the garden at No. 18 and the Claimants’ basement living area, which has wall-to-wall glass doors and a glass roof.

The Claimants objected to the loss of privacy. They were now overlooked from above, at close quarters, both in their home and in the garden area closest to the house.

The Interested Party then installed three large sections of trellis, in descending height, on top of the existing fence. This new fencing reduced the overlooking but it was obtrusive and unattractive. Its height was out of proportion to the size of the garden, creating a fenced-in effect.

Following complaints, the Interested Party submitted a retrospective planning application on 18 January 2010 for the conservatory and steps.

The Defendants consulted the Claimants on the application, by sending a letter to No. 18 addressed to the ‘owner/occupier’.

The Claimants’ planning consultants, Dalton Warner Davis, made representations to the Defendant in a letter dated 18 February 2010, objecting to the development on the basis of overlooking from the steps and balcony, contrary to policies SD6, B1 and B3 of the Camden Unitary Development Plan, and the harm to outlook and the character and appearance of the conservation area caused by the trellis. The height of the steps was described in different ways in their representations. This was somewhat confusing for the reader, but I did not accept the Defendant’s submission that Dalton Warner Davis mistakenly believed that the steps rose to the top of the fence, as it would have been obvious from a site visit, and from the photographs, that this was not the case.

The Defendant’s planning officer, Ms Eimear Heavey, visited No. 16A and No. 18, and subsequently wrote a report recommending that planning permission be granted. In her view, the Claimants’ concerns about loss of privacy were not justified because it was very hard to see through the new trellis. Their rear garden was already overlooked from the upper floors of No. 16 and No. 14. She did not accept the Claimants’ representations that the steps should be moved further away from the boundary.

The application was reported by officers to a meeting of the Members’ Briefing Panel on Monday 15 March 2010. The purpose of taking applications to the Members’ Briefing Panel is for Members to advise the planning officer whether, in their view, it is appropriate for the application to be determined by officers, acting under delegated powers, or by Members of the Development Control Committee.

On this occasion, in accordance with usual practice, the officers provided the Members Briefing Panel with a ‘Delegated Report Members Briefing’. This contained a recommendation to ‘grant planning permission’. In accordance with the Council’s published procedures the report was put on the Council’s website on the Friday before the meeting, i.e. 12 March. The meeting was in private and no minutes were produced, but an annotated copy of the agenda was produced in these proceedings. Under the printed column ‘To be agreed under delegated powers Yes/No’, the outcome in respect of this application was written by hand: ‘N – deferred for further negotiation’.

Ms Sheridan Waddell, the planning officer who presented the application to the panel, said that she marked up the Members’ case list “as not going forward to a delegated powers decision but as being ‘deferred for further negotiation’”. In her witness statement she said that one of the Members commented that the trellis was obtrusive and dominant and suggested it could be reduced in length and height. Ms Waddell and Ms Heavey agreed with this suggestion, considering that the trellis could be less obtrusive without compromising privacy for the Claimants.

Thus I find that the outcome of the meeting was that the decision as to whether this application should be determined under delegated powers was deferred, pending further negotiations with the applicant on the detail of the proposals.

Dalton Warner Davis were told by Ms Heavey in an email dated 17 March 2011:

“The councillors agreed to approve the application but only on the condition that the applicant ensures that the privacy screen is 1.8metres at all points (at some points it is higher and will need to be taken down) and that the 'end piece' of the privacy screen is removed. This is to ensure that the outlook of the neighbouring property will not be adversely impacted upon.”

This email was incorrect, as the Members had not approved the application. The Members Briefing Panel was not responsible for approving applications.

In an email dated 6 April 2010, Ms Heavey informed the Interested Party “your permission will be granted but only on condition that the privacy screen is reduced in size and I will need to received amended drawings to indicate this”.

This email was also incorrect in stating that permission had been granted.

Ms Eaton of Dalton Warner Davis had a conversation with Ms Heavey on 14 April and sent a further objection that day:

“Further to our conversation I would like to raise an objection to the proposal to lower the trellis to 1.8 metres as this will not overcome the objection my client has to the retrospective application for planning permission. The reduction in height is not an appropriate solution to the harmful impact on amenity created by the development. We maintain that access to the part closest to the balcony should be restricted to adequately overcome the issues raised.

I maintain the position that it is essential for members to view the site in question from my clients’ property to fully assess the impact on their amenity given the severity of the impact caused by the proposed approval of retrospective planning permission.

I request that this is drawn to the attention of members prior to determination of the application.”

The Interested Party’s architect sent a draft amended drawing to Ms Heavey on 12 May.

On 20 May Dalton Warner Davis asked whether revised plans had been received but received no reply from the Defendant.

Ms Heavey replied to the Interested Party’s architect on 24 May and he emailed over the amended drawing (07A) the same day.

The drawing was not posted on the Defendant’s website at this time.

After checking the Council’s website, Dalton Warner Davis emailed Ms Heavey on 1 June 2010 again asking whether the plans had been submitted. No reply was received.

Ms Heavey prepared a further Delegated Report Members Briefing, commenting favourably on the amended plans submitted on behalf of the Interested Party, and unfavourably on the Claimants’ objections, as communicated in the email of 14 April.

In its pre-action response, the Defendant admitted that, through administrative error, neither this report nor the amended drawing was put on the Council’s website. The Claimants were therefore unaware of the amended drawing (in final or draft form) or the report until after the decision was made.

Full planning permission was granted on 1 June 2010, subject to a condition that a privacy screen, in accordance with plan 07A, be erected and retained. Under the heading ‘Reasons for granting permission’, it said “For a more detailed understanding of the reasons for the granting of this planning permission, please refer to the officers’ report.”

The report was not placed before a Members’ Briefing Panel on 1 June. It was considered at a meeting of planning officers. Mr Watson, Assistant Director of Planning and Public Protection, advised that the application could proceed under delegated powers, and approved Ms Heavey’s report. Ms Heavey said:

“Once it was reported back to me that the application would proceed under delegated powers I finalised the decision and granted planning permission.”

Despite this, in a series of emails the Defendant stated that the application had been approved by members:

The Claimants’ pre-action letter challenged the decision taken at the ‘second members’ briefing’, as at that stage the Claimants believed the application had been before the Members Briefing Panel on 1 June. In its response the Defendant said that the decision had been taken by the Director under delegated powers on 1 June 2010 but did not say that the application had not been considered at a second Members Briefing. Indeed, the letter suggested to the contrary. At paragraph 5.22 it explained that:

“[t]he references in emails to Members at Members Briefing meetings approving the matter are references to their approving that it can be dealt with by the officer under delegated authority rather than be sent for determination by the Development Control Committee”.

At paragraph 5.15, the letter stated that the representations made by Dalton Warner Davis on 14 April were duly drawn to the attention of the Members before the application was made. The letter also stated:

“A copy of the officer’s report to the second briefing on 1 June 2010 is enclosed.”

The Defendant’s Summary of Grounds, in the judicial review application, did not explain that no Members Briefing took place. Instead, it stated, at paragraph 12, that “the second Briefing took place on 31 May not 1 June” and that the Panel did not determine applications although ‘subject to the discretion of the Director, it effectively makes a decision as to whether or not it is satisfied that the proposed decision proceeds under delegated powers’ (paragraph 18).

Following the grant of permission to apply for judicial review the Defendant said for the first time (in the witness statement of Ms Heavey and in a letter dated 2 February 2011) that the application had not been considered again by the Members Briefing Panel before the grant of planning permission on 1 June. The reason given was that it was immediately after the Council elections, and so members of the Development Control Committee had not yet been appointed and no Panel had been set up.

This was not quite accurate. The election had taken place on 6 May. The Development Control Committee and its Chair had been appointed at the Full Council meeting on 26 May 2010. On 3 June 2010 the Committee elected its Vice-Chair.

Whilst ‘non-executive’ matters such as determining planning applications are vested in a meeting of all councillors, in practice, decision making powers are delegated to committees, sub-committees or officers by arrangements under section 101(1) of the Local Government Act 1972:

“Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions—

(a)

by a committee, a sub-committee or an officer of the authority. ”

The Council’s arrangements under section 101 are contained in its Constitution (adopted under section 37, Local Government Act 2000). The New Council Constitutions: Guidance to English Authorities explains that the Local Government Act 2000 (Constitutions) (England) Direction 2000 made under section 37(1)(a) requires constitutions to include:

“the roles of ordinary committees and sub-committees of the local authority including:

i.

the membership, terms of reference and functions of the local authority's committees and sub-committees;”

“the roles of officers of the local authority including: ...

v.

details of delegations of functions to officers ...”

“principles for efficient, transparent and accountable decision making and access to information about decision making including procedure rules for decision making and access to information in respect of the full council (and its committees and sub-committees), the executive, overview and scrutiny committees and officers.”

Article 1 of Camden’s Constitution provides, as relevant:

“1.01

Powers of the Council

The Council will exercise all its powers and duties in accordance with the law and this Constitution.

1.02

The Constitution

This Constitution, and all its appendices, is the Constitution of the London Borough of Camden.

1.03

Purpose of the Constitution

This Constitution is based on the following general principles:

Openness being open about the decisions and actions that the Council takes.

Responsiveness listening to all sections of the local community and finding a balance that will best meet local needs .

Representativeness enabling the Council to act in the interests of the whole community that it serves .

Integrity enabling Councillors and Council employees to act in accordance with the highest ethical standards

It seeks to achieve the following broad objectives:

(i)

clear decision-making

(ii)

transparency about who makes decisions

(iii)

inclusive decision-making and consensus .”

The ‘Terms of Reference for Development Control Committee and matters reserved to it’ authorise:

“Consideration of the following categories of application recommended for approval:

ix: where the Director of Culture and Environment has referred the application for consideration after briefing members;”

All matters not specifically referred to elsewhere in the constitution are delegated to the appropriate chief officer, who for development control is the Director of Culture and Environment.

The Council’s Constitution includes in Part 5 a planning protocol. The protocol’s introduction explains:

“Purpose of the planning protocol

The planning protocol explains:

“Making planning decisions in Camden

Delegation of planning decisions to officers.

103.

Under delegated procedures the director of culture and environment or nominated officer makes the decision. Officers’ delegated reports, similar to but normally shorter than Committee reports, set out the representations received and the relevant policy considerations and assessments. These reports go through a thorough established checking and endorsement procedures at different levels. These reports would normally be put on Camden’s website two days before the relevant members’ briefing.

104.

For applications which officers are minded to recommend for approval under delegated powers but relevant planning objections have been received, Camden has put in place an additional member review. This is a weekly briefing of nominated members of the Development Control Committee, and those members may advise, having reviewed the officers’ report including the representations received, that a Committee decision would be preferred. Details of the operation of this informal weekly briefing session can be found in the separate procedure note “Members’ development control delegated decisions briefing”.”

This procedure note ‘Development control members briefing’ provides:

“How decisions are made on planning applications

... The constitution of the London Borough of Camden sets out which decision route is appropriate. ...

... the director does not exercise her/his delegated powers to approve applications where there are outstanding objections on material planning grounds without first briefing Members on the action that she/he proposes to take.

Camden’s Members briefing procedure

While most planning authorities make most of their decisions using delegated powers,

Camden is unusual in having a Member overview of cases where there are outstanding objections. This overview adds transparency and additional member involvement in the process. It also helps to demonstrate a high degree of consistency in applying policies.

Members’ briefing takes [place] every Monday (except during Christmas closure and bank holidays and the cases to be considered are assembled on a weekly basis, by the Friday of each week though occasionally cases can be added later if late objections are received.

Members who are briefed are the chair and vice chair of the development control Committee (currently Conservative and Liberal Democrat positions respectively), and a third member of the Committee from the Labour group. The three largest political parties represented on the Committee are represented at Members’ Briefing.

The role of Members at Members’ briefing

It is important to note that the three members who are briefed do not decide the applications that are looked at. Their role is to:

• consider the nature and extent of the outstanding objections

• consider how the officers’ assessment and proposed decision deals with all the representations that have been received

• advise the director as to whether she/he can proceed to decide the application under her/his delegated authority; or

• request that she/he refer it to the Development Control Committee to be decided, so that the decision can be made in public.

Members’ briefing case list

The weekly Members’ briefing case list for Monday can be viewed on Camden’s website on the preceding Friday afternoon. As noted above, sometimes late additions are made to the list right up to Monday morning. The case officer can advise if a case is being referred to the briefing meeting.

Availability of officers’ reports

All officers reports, whether Committee or delegated, are available on the website. They contain the assessment of the proposal against the relevant Camden policies and summarise and respond to the representations that have been received. Committee reports are available five days before the meeting, and delegated reports two days after the decision is taken.

Officer reports to be considered at Members’ briefing can be viewed online by taking a note of the application reference number and using the planning explorer search facility.”

The Defendant’s website also explains how the Members Briefing (in a page which Members’ Briefing reports link to):

“What is Members’ Briefing?

Every Monday planning officers present to the Members’ Briefing Panel all those applications that, under the Constitution of the London Borough of Camden can be decided under powers delegated by elected members to officers.

The Members’ Briefing Panel is not a decision-making body. It is a mechanism that gives members an additional oversight of the delegated decision making procedure.

How can I find out about applications Members’ Briefing Panel consider?

Local planning authorities are required to adopt statements of community involvement by section 18 of the Planning and Compulsory Purchase Act 2004. Section 18(2) provides, as relevant:

“The statement of community involvement is a statement of the authority's policy as to the involvement in the exercise of the authority's functions under ... Part 3 of the principal Act of persons who appear to the authority to have an interest in matters relating to development in their area.”

The principal Act is the Town and Country Planning Act 1990, Part 3 of which is concerned with planning applications. The Statement of Community Involvement therefore sets out the Council’s policy as to the involvement of the public in planning applications.

The Council’s Statement of Community Involvement says ‘the Council is required to follow what it says’ (paragraph 1.3). In Box 2.1(4), the Council states that it will “wherever possible, give enough time for people to be consulted”. At paragraph 2.3 the Council says that it would aim to follow principles in delivering the planning service including ‘being transparent in the way planning decisions are carried out’. Paragraph 4.4 refers to the Members Briefing:

“A Members Panel meets to advise officers whether, when such applications have received objections but are recommended for approval, they should be referred to the Development Control Committee”

Table 4.1 headed ‘Notification methods for planning applications’ says ‘Planning web site contains details of all planning applications received. Planning application form and drawings are viewable.’

Paragraph 4.8 begins:

“The standard that the Council uses for notifying people of different types of planning application are set out in Annex 6.”

Paragraph 4.19 is under the heading ‘Howwe use the comments made and give feedback’. It says:

“All comments made on planning applications are summarised in the delegated report or report to Committee. Everyone who makes a comment on a planning application is notified of:

• any significant revisions made to the application ...”

Annex 6 to the planning protocol sets out in a table the statutory requirements for consultation, stating that these will be applied as ‘minimum standards’. At the foot of the document it states:

“Any revisions to a planning application needs to be submitted within a timescale that will still allow the Council to meet the original deadline for determining that application. Where this is possible and practicable, officers will re-consult those who have objected to the scheme and may consider re-consultation of all those who were originally consulted.”

Circular 15/92. Publicity for Planning Applications

The Defendant relied upon Circular 15/92, which provides guidance to the Town and Country Planning General Development Order 1988. The Circular was issued as long ago as June 1992, and so does not reflect current use of the internet by planning departments.

Paragraph 5 states that the GDO makes provision for three types of publicity:

The statutory requirements for different types of developments are set out in a Table at the end of the Circular. It was common ground that neighbourhood notification was the appropriate mode of publicity in this case, as “the development will only be of interest to close neighbours, whose main concern may be about a loss of light or privacy” (paragraph 7).

Paragraph 22 refers to the target of determining 80% of planning applications within 8 weeks (PPG1, March 1992), and adds:

“Authorities are asked to ensure that their obligations to publicise applications do not jeopardise this timetable.... Wherever possible, publicity arrangements should be undertaken in parallel with other necessary action so that the consideration of applications is not delayed. But no system for publicising planning applications can be foolproof, however extensive. There needs to be a balance between considerations of cost, speed of decision making, and providing a reasonable opportunity for public comment. Decisions on operational procedures are matters for local authorities’ own judgment, having regard to all these factors.”

Paragraph 25 deals with changes to applications. It states:

“There is no statutory obligation on local planning authorities to publicise changes to applications once they are accepted as valid; or required by a condition on a previous application (for example, a time-limited permission); or for the approval of reserved matters following the grant of outline planning permission. Nevertheless, such matters are often of most concern to objectors. It will be at the discretion of the local planning authority to decide whether further publicity is desirable, taking into account the following considerations:

(a)

were objections or reservations raised at an earlier stage substantial and, in the view of the local authority enough to justify further publicity?

(b)

are the proposed changes significant?

(c)

did earlier views cover the matters now under consideration?

(d)

are the matters now under consideration likely to be of concern to parties not previously notified?”

The Claimants submitted that the Defendant’s procedures, leading up to the decision of 1 June 2010, were unfair to the Claimants, and therefore the decision should be quashed. The grounds relied upon were:

A legitimate expectation may arise “either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue” (per Lord Fraser, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375, at 401B.)

The representation may be express or implied (R v Inland Revenue Commissioners ex parte Unilever [1996] STC 681). The representation need not be made to the claimant personally; it is sufficient if the claimant is a member of a class of persons who are the subject of a general policy (AG for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629).

The representation must be “clear, unambiguous and devoid of relevant qualification” (per Bingham LJ in Ex p. MFK Underwriters [1990] 1 WLR 1545, at 1570.)

According to De Smith’s Judicial Review 6^th ed. (2007), at 12-040:

“Despite dicta to the contrary, it is not normally necessary for a person to have changed his position or to have acted to his detriment in order to qualify as the holder of a legitimate expectation.”

When may a public authority lawfully resile from a representation it has previously made?

In R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, the Court of Appeal considered cases in which a promise or practice induced a legitimate expectation of consultation before a decision is taken, and concluded, at [57, 58], per Lord Woolf MR:

“57.

Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires...

58.

..... the court’s task is the conventional one of determining whether the decision was procedurally fair.”

In Bibi v Newham LBC [2002] 1 WLR 237, the Court of Appeal (per Schiemann LJ at [29,30]) adopted the passage in Craig: Administrative Law 4^th ed., at 619, which stated:

“Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. This is in accord with policy, since if the individual has suffered no hardship there is no reason based on legal certainty to hold the agency to its representation. It should not, however, be necessary to show any monetary loss, or anything equivalent thereto....

Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such.”

In R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, Laws LJ said, at [68, 69]:

“68.

Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public. In my judgment this is a legal standard which, although not found in terms in the European Convention on Human Rights, takes its place alongside such rights as fair trial, and no punishment without law. That being so there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European Convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.

69.

This approach makes no distinction between procedural and substantive expectations. Nor should it.”

This statement of principle was approved by the Privy Council in Paponette & Ors v AG of Trinidad and Tobago [2012] 1 AC 1, per Lord Dyson at [38].

The Defendant’s Statement of Community Involvement was held to give rise to a legitimate expectation by the Court of Appeal in R(Majed) v London Borough of Camden [2009] EWCA Civ 1029 [2010] J.P.L. 621, where the Defendant omitted to notify the claimants of the planning application, despite the fact that they were near neighbours. Sullivan LJ said:

“14.

On behalf of the respondent and the interested party, [Counsel] submitted that there was no legitimate expectation. It was submitted that, since there was a specific statutory code -- the General Development Procedure Order (“GDPO”) -- which regulates the balance between the various interests, applicants and local residents, as to who should and who should not be notified, it would be wrong to impose some rigid requirement to notify in accordance with the terms of Annex 6. It was submitted that this would upset the balance that had been struck by the statutory requirements. It seems to me that reference to the statutory requirements is of no real assistance. Legitimate expectation comes into play when there is no statutory requirement. If there is a breach of a statutory requirement then that breach can be the subject of proceedings. Legitimate expectation comes into play when there is a promise or a practice to do more than that which is required by statute. It seems to me that the Statement is a paradigm example of such a promise and a practice. As I understood it, [Counsel for LB Camden] accepted that this appellant falls within Annex 6. … It was submitted by the respondent and the interested party that, even though there was a clear statement that a person in the position of the appellant would be sent a letter, there was nevertheless no unequivocal assurance that they would be notified. I am quite unable to accept that submission given the clear terms of paragraph 1.3 of the Statement which tells the public that when the Statement is adopted by the council it is “required to follow what it says”. It would be difficult to imagine a more unequivocal statement as to who would, and who would not, be notified.

15.

There was therefore, in my judgment, a clear breach of the appellant’s legitimate expectation that he would be notified of planning applications, such as the application made by the interested party, in accordance with the terms of annex 6 to the Statement. The Appellant therefore succeeds on issue 1. It does not necessarily follow that the grant of planning permission was unlawful. It is unnecessary in the circumstances of this particular case to decide whether a claimant in the appellant’s position must, in order to establish procedural unfairness, also demonstrate prejudice as a result of the failure to notify him, because the question whether the appellant was prejudiced by the failure to notify him in accordance with the statement (and, if so, to what extent) is plainly relevant to the exercise of the court’s discretion as to whether the permission should be quashed or whether declaratory relief should be granted.”

Majed was applied in R (Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin) where the court held that the claimant, who had objected to the planning application, had a legitimate expectation that he would be informed of the date of the Committee meeting in time to address it, as a result of representations made by the Council in its Statement of Community Involvement and a letter sent to him.

Circular 15/92, paragraph 25 alerts planning authorities to the importance of giving objectors an opportunity to comment on changes to applications.

The Defendant established a policy providing for re-consultation on amendments, in three classes of case:

I accept Mr Harwood’s submission that paragraph 4.19 is concerned with notification of ‘everyone who makes a comment on a planning application’ and that Annex 6 deals with a specific sub-class of those who commented, namely objectors. Given the concern which objectors have about the application, it is understandable that the Defendants undertakes to notify them of any revision, not just ‘significant revisions’.

In my judgment, the revision, although small, was significant in this case since the impact of a smaller trellis on the Claimants’ outlook was likely to be a decisive factor when the Members Briefing Panel came to re-consider whether the application should be sent to Committee or approved by officers under delegated powers. Therefore, the Claimants were entitled to be notified of the revision under paragraph 4.19, so that they could consider the revision and make their views known to the Defendant.

As objectors, the Claimants were also entitled to be notified of the revision under Annex 6. In my judgment, it was both possible and practicable to consult on the amendment. The chronology of events shows that the Defendant made no attempt to do so, despite requests from the Claimants’ planning consultants.

Annex 6 seeks the submission of revisions in sufficient time to determine the application within the original deadline. The original deadline for determining the present application was eight weeks and that expired a week after the 15 March Members Briefing. The Defendant allowed the amendment to be made over two months later, on 24 May. The Statement of Community Involvement does not provide that objectors will be denied re- consultation because the applicant has been allowed to make the amendment after the original time for determining the application. In this particular case, there was no particular urgency. The extension had already been constructed. There was time to re-consult and no deadlines would have passed in the re-consultation period.

I have considered whether the Defendant complied with its obligation to notify and consult the Claimants of the revision, by sending their consultants the email of 17 March 2011 which informed Dalton Warner Davis of the Members’ suggestion that the Interested Party should reduce the height and length of the trellis.

I have concluded that the Claimants had a legitimate expectation that the Defendant would send them the revised application i.e. drawing 07A, so that they could comment on it, for two reasons. First, it was only upon seeing the drawing that they would know precisely what was proposed. Second, the Statement of Community Involvement requires re-consultation following the submission of the revision of the planning application. It is only possible to consult on a revision once that revision has been made. Even if the local planning authority has a disclosed view as to what should be in a revision, that is not the same as consultation on the revision.

The Defendant therefore breached the Claimants’ legitimate expectation to be notified and consulted on the revision to the application, namely, drawing 07A. No valid explanation has been put forward for the failure to do so. The Claimants’ consultants specifically asked the planning officer on two occasions, on 24 May and 1 June, whether the revised plan was available, but did not receive a reply.

The Defendant admitted that, because of an administrative error, the officer’s delegated report and the amended drawing 07A were not put on its website in advance of the meeting on 1 June. The Defendant only put these documents on the website in August, after receipt of the Claimants’ pre-action letter.

The Statement of Community Involvement states that, as part of notification on an application the application plans will be placed on the Defendant’s website. The purpose of this is to enable interested parties to comment on them, prior to the decision being made. The Defendant submitted that although it “endeavoured” to put amended drawings on line, it did not undertake to do so. In its response to the pre-action letter, the Defendant apologised for the failure to do so, explaining that this was an administrative error.

I have not found evidence of a sufficiently clear representation that amended plans would be posted on the website to give rise to a legitimate expectation to that effect.

The Planning Protocol provides that officers’ delegated reports “would normally be put on Camden’s website two days before the relevant members’ briefing”. It cross-refers to the ‘Development control Members Briefing’ procedure note which refers to the publication of the case list for Members’ Briefings and states:

The Defendant’s website gives more detailed information:

I accept Mr Harwood’s submission that these documents included a clear representation that officers’ reports would be made available online in advance of the Members’ Briefing meeting. As well as fulfilling the need for openness, this practice is intended to enable interested parties to consider the report and make any additional comments in advance of the meeting. By failing to make the officer’s report available, the Defendant breached the Claimants’ legitimate expectation that they would be able to see, and comment on, the officer’s report before the meeting.

Of course, there may be instances where the report is not available online for good reason. Or where the case officer makes the report available to objectors by some other means, such as email or post. Unfortunately, in this case no good reason has been put forward to explain the omission. Although the Claimants’ consultants emailed the planning officer on 20 May and 1 June asking for information, the planning officer did not respond.

The legitimate expectation that the report would be published with an opportunity to comment remained even though exceptionally the functions of the Members’ Briefing Panel were taken on by the Assistant Director, because of the election. The Assistant Director was replacing the Members Panel and so procedural safeguards for Members Panels applied to the Assistant Director’s role. The substitution of an officer for the Panel was not a reason for failing to publish the report in advance of his consideration and it has not been put forward as the reason.

Had the report been placed on the Defendant’s website, as the Defendant had promised to do so, it would have been seen by the Claimant’s consultants in time for representations to be made in advance of the 1 June Members Briefing or as in fact happened, the officers’ meeting on that day. Miss Mann checked the planning application page on the Defendant’s website prior to emailing the Defendant 12.19 pm on 1 June. Had the Defendant complied with its own procedures, the report would have been on the website at that time.

I set out below the prejudice which the Claimants suffered as a result of not seeing the report in advance of the meeting on 1 June.

I have found that the outcome of the 15 March 2010 meeting was that the decision as to whether this application should be determined under delegated powers was deferred, pending further negotiations with the applicant on the detail of the proposals.

The Defendant’s procedures – set out in its planning protocol, Briefing procedural note, statement of community involvement and website – contain clear representations that a Members Briefing Panel would consider the application and advise whether it should be determined by officers under delegated powers, or by Committee.

The terms of reference for the Development Control Committee include applications ‘referred ... for consideration after briefing members’. The terms of reference therefore require a process for briefing members before the mode of determination is decided (without specifying which applications members are to be briefed on).

In this case, where a decision on mode of determination had been deferred, the Defendant plainly anticipated that the application would be referred back to the Members Briefing Panel on a later occasion for a decision to be made. Ms Heavey wrote a further report for the Members Briefing Panel. There was a series of emails in which the Defendant wrongly stated that the application had been approved by the Members Briefing Panel, and the Defendant’s response to the pre-action letter and its Summary Grounds were based on the mistaken assumption that the application had been approved by the Members Briefing Panel. In my view, the reason that the Defendant mis-represented the true position was because referral back to the Members Briefing Panel was the expected and usual procedure which should have been followed.

In my judgment, there was a legitimate expectation that the Members Briefing Panel would be consulted on whether this application would be decided by officers under delegated powers or referred to the Development Control Committee for a decision. Objectors, such as Claimants, were a class of persons entitled to the benefit of this aspect of the Defendant’s planning procedures and policies, since part of the Members’ role at Panel meetings was to consider objections received and the way in which officers intended to deal with them (see Development control members briefing note).

The Defendant’s explanation for the failure to refer the application to a Members Brief Panel was that it was not feasible to do so because of the local elections, which resulted in a change in composition and membership of Development Control Committee and the Members Briefing Panel. The Defendant contended that, in the circumstances, it was sufficient that a meeting to consider the application had taken place with officers present, but without any members. The Members only acted in an advisory capacity, and so the decision would have been taken by the same senior officer, whether or not the Members were present.

The Defendant’s procedures explain that Briefings take place weekly except for the Christmas period. When adopting this process the Defendant must have been aware that there would be changes to Committee and panel membership following elections. Its procedures do not set out an exception to the general practice during the election period, presumably because it was not thought necessary to do so.

The first explanation offered by the Defendant for not having members at the briefing was that the Development Control Committee had not been formed prior to 1 June 2010 (2 February 2011 letter and Ms Heavey witness statement paragraph 25). This is factually incorrect. The Committee and its Chair were appointed by the Council meeting on Wednesday 26 May. The Vice-Chair was elected at the Committee’s first meeting on 3 June 2010. The election was on 6 May, so these initial meetings were not expedited.

Prior to the election there were 16 members of the Development Control Committee. After the meeting on 26 May, there were 15 members and one vacancy. There was continuity of membership and experience in that 7 members (from the 3 main parties) were re-appointed to serve again on the Committee.

Prior to the election, the Members Briefing Panel comprised a Conservative Chair, a Liberal Democrat Vice-Chair, and two Labour Party members. Because Labour took control of the Council in the elections, the post-election Panel had a Labour Chair and Vice Chair and two minority party members, (one Conservative and one Liberal Democrat).

According to the Defendant, it was not possible for the membership of the Members Briefing Panel to be established until the Vice-Chair had been elected by the new Development Control Committee, since by convention he sat on the Members Briefing Panel and, together with the Chair, would invite other members to join the Panel. Since the new Vice-Chair was not appointed until 3 June, it followed that the Members Briefing Panel could not be constituted prior to that date. It did not begin to sit until 14 June.

The Defendant also relied upon the fact that it was the practice for new and returning members of the Members Briefing Panel to receive training before commencing their work. On this occasion, the members were not trained until 2 June.

In my judgment, the Defendant could have re-constituted its Members Briefing Panel earlier than it did. Even on its own case, it could have been done as soon as the Vice-Chair was appointed on 1 June. It is an advisory body and so its membership is not determined by a decision of full Council or a Committee. The membership is settled without formality by councillors and the relevant senior officers. I thought there was force in Mr Harwood’s submission that it would have been straightforward for the three largest political groups each to nominate a member of the panel, even if that subsequently changed. By the time of the full Council meeting on 26 May 2010 the membership of the Development Control Committee was settled and the parties would have been able to know who their lead members were on that Committee and who they would want on the Panel for the remainder of the year.

If it was not possible to establish the Panel by 1 June, the proper course in this case would have been to postpone re-consideration until the Members Briefing Panel was established. There was no particular urgency about this application. The development had already been built. By this stage the target time limits for processing the application had already been exceeded.

In my judgment, the Defendant’s departure from the representations set out in its policies was not justified by the fact that an election had recently taken place and the Members Briefing Panel had to be re-constituted.

In her witness statement, Ms Wheat stated that the Director of Culture and Environment had decided in conjunction with members to have briefings before officers for a five week period. This decision was not publicised and no documentary evidence of it was available to the court. For the reasons I have set out above, such a decision would have been contrary to the Defendant’s published policies.

I accept Mr Harwood’s submission that the Claimants were prejudiced by what occurred. The Claimants were not able to make representations on the amended plan and the June Members Briefing Report and the matter was considered in June only by officers, without any input from Members.

Had the application gone to the Members Briefing, the Members may have advised that it should go to Committee. The proposal remained contentious, and flawed.

The assessment in the ‘Delegated Report Members Briefing’ began:

“Members Briefing on 15/03/2010

This application was brought to Members Briefing on 15th March, where it was agreed that amended plans be submitted which show the trellis reduced in length and no higher than 2 metres at any point. The applicant would then be required to reduce the trellis to this extent. This was to ensure that the neighbouring property did not suffer from any loss of outlook. The applicant has submitted amended plans which show the trellis at the dimensions requested by Members, however, agents acting for the neighbouring property at 18 Regents Park Road have submitted an objection to this decision as they feel it does not overcome the harmful impact on their amenity.”

The report said that the reduction in the length of the trellis ‘is considered to solve any issues in terms of loss of outlook to the neighbouring property’. It also said that the Claimants’ suggestion that access to part of the balcony be restricted is ‘overly onerous as it would deny the applicant access to their rear garden from ground floor level’. Officers therefore overlooked the Claimants’ suggestion that the staircase be moved (so allowing access to the garden to be maintained) and the part of the balcony closest to the boundary closed off. The report continued:

“It is not possible to see through the trellis into the living area of the neighbouring property and therefore reducing the trellis to this length will not impact on the privacy of the occupants 18 Regents Park Road.”

The Claimants’ earlier representations had said it was possible to look over the original, larger trellis into the living area. The June report repeated the March report’s conclusion.

In the present case the effect of the revision was not apparent until the amended drawing was submitted. The extent of the reductions in the size of the trellis and the location of those changes was not known until that point. The extent to which that would permit greater overlooking or reduce impacts on outlook could not be assessed until the drawing was produced.

Had the Claimants’ consultants had sight of the amended drawing prior to the June meeting they would have explained that the amendments showed the failure of the proposed compromise. The fundamental problem was that the design of the balcony and stairs brought people at a high level immediately adjacent to the boundary and able to look into No. 18. The proposal now managed to cause overlooking and harm outlook. The proposed revisions to the height of the trellis and the removal of the end panel made the overlooking and loss of privacy problem worse, yet the larger the screen the worse the effect on enclosure and outlook on No. 18. The reduced length would increase the overlooking of the Claimants’ garden as it would not screen the garden when walking up and down the steps.

The June Briefing report contained errors and contentious statements. It referred to a reduction in height to 2 metres when officers had said that members had agreed 1.8 metres at the previous meeting. Problems of overlooking both through and over the trellis were increased by the amendments and unacceptable impact on outlook continued. It was (and is) possible to see through and over the trellis into the living area of No. 18. The report misunderstood the Claimants’ proposal to restrict access to the part of the balcony closest to the boundary by saying this would prevent ground floor access to the garden. The Claimants were maintaining their proposal in the February letter that the staircase be moved towards the centre of the plot (the old position), allowing ground floor access to the garden.

Substantial and important representations would have been made on the report and revised drawing if they had been published in accordance with the Defendant’s policies.

I conclude that the Defendant has acted unlawfully, in breach of legitimate expectations set out in its policies and procedures.

The Defendant invited me to refuse relief on the basis of the Claimants’ low prospects of success in objecting to the grant of planning permission.

A quashing order should only be refused if it is inevitable that the outcome would have been the same had the correct procedures been followed see R(Copeland) v London Borough of TowerHamlets [2011] J.P.L. 40 at para 36, 37 citing Smith v North Derbyshire Primary Care Trust [2006] EWCA Civ 1291, per May LJ at [10]:

“ ... Probability is not enough. The defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision...”

In the present case the Interested Party built the new conservatory without planning permission and made the application under the threat of enforcement action. The planning concerns are recognised in the Members’ initial request for amendments to the scheme. There remains the question whether those amendments make the scheme acceptable, or whether there is an alternative solution.

In my judgment, this not a case in which it would be proper to refuse relief. I order that the grant of planning permission should be quashed, and re-considered according to law.