Gorton, R (on the application of) v Lewisham Council & Anor

This is a renewed application for permission to apply for judicial review in relation to a decision of Lewisham London Borough Council to grant planning permission for development in Deptford on land north of Reginald Road and south of Frankham Street.

I am grateful to Mr Richard Buxton, the solicitor appearing on behalf of the claimant, for the helpful skeleton argument which he produced for this hearing. It assisted the court by pinpointing what the case was about, at least initially, although a new point has since been raised. He has made it plain at today's hearing that he only seeks permission to apply for judicial review. At an earlier stage an injunction had been sought - I believe it was an urgent application - which was dealt with initially by Lambert J who adjourned it to be dealt with on the papers. It came before Morris J on 6th September when he refused the application for an injunction as well as refusing the application for permission. He expressed the view that there was no legal basis for the court to grant an injunction preventing the local authority from enforcing its clear right to obtain vacant possession of a certain piece of land irrespective of the purpose for which they wished to obtain possession. I entirely agree with that view. There is no legal basis for this court to interfere with that process. Mr Buxton, in fairness to him, confirmed that he now accepts that.

In para. 17 of the statement of facts and grounds the claimant's pleaded case was put very crisply. It was submitted that the decision of the council was vitiated by an error of law in that the report by the officers to the members of the relevant decision-making committee was significantly misleading in the sense defined by well-established case law. In particular, it was said that there were two basic errors in the decision affecting the assessment of the number of properties adversely affected. First, the claimant submits that the report claimed that the proposal passed the BRE guidelines on Daylight and Sunlight whereas, in fact, there was a failure to comply with the vertical sky component, or VSC, test. In other words, it the officer’s report improperly suggested that the proposal was acceptable in terms of the BRE guidelines purely by reference to the NSL test. Secondly, it is said that the report advised members that the proposal passed the BRE guidelines simply as a result of carrying out calculations which assumed the removal of existing balconies on the relevant properties.

An argument of this kind can be tested by asking the question where in the officer's report were either or both of those errors committed? It is a pertinent question given that, first of all, the defendant and the interested party have explained in their summary grounds of defence that neither error was committed and secondly Morris J took the same view in refusing the application for permission on the papers. It was, therefore, a pertinent question to be addressed head-on by the claimant when renewing her application today. I hope I may be forgiven for saying so, but I gave Mr Buxton at least two opportunities to answer that crucial question and he was unable to draw my attention to any part of the officer's report which could arguably be said to have significantly misled the members in either of those two respects. In any event, I reach the same conclusion as Morris J on my own reading of the document. I would add that this case does not arguably involve the sort of legal error which resulted in the planning permission being quashed in the Rainbird case.

In his skeleton argument for today's hearing, Mr Buxton has adjusted the criticism which the Claimant seeks to make. In for example para. 4 he says that the committee report failed to advise members that, applying the BRE guidelines properly understood, the mere failure of the VSC test should be treated as representing a “significant impact” on daylight.

This criticism raises a familiar type of complaint in this area of the law. The established case law lays down this approach. The officer's report to Committee is not analogous to a decision letter, such as one issued by an inspector on a planning appeal. Its function is not to provide reasons, as in an appeal decision, which resolve all the principle important controversial issues. Instead its purpose is to provide a summary of the information before the council and the issues, and to provide advice for the benefit of the members. The case law clearly states that it is a matter for judgement on the part of the officers as to what material to include in their report and how much detail they think it appropriate to go into. It is recognised that reports to committee should not become overburdened by excessive detail. That is a matter of judgment for officers, which is not open to review in this court save on public law grounds, notably irrationality.

The BRE guidelines are frequently used in the making of planning decisions. It is not arguable that this decision was flawed because one cannot point to a particular sentence in the officer’s report which reminded members of the particular extract from the BRE document upon which Mr Buxton relies. What the officer's report did instead was to lay out a summary of the analysis which had been carried out using a number of tests and then invited the members to reach their own conclusion as to whether, as a matter of overall judgement, the level of impact which had been identified applying these tests - and it is not suggested that there was any error in those respects - should be taken to be unacceptable from a planning point of view, and not simply a significant impact. That approach is entirely normal and permissible. It was a classic exercise of planning judgement. It raised matters of fact and degree. They were matters entirely for the officers initially to comment on as they judged appropriate and, ultimately, for the members to weigh. It is not a matter with which this court could arguably be asked to interfere.

At the hearing today Mr Buxton raised a new point. He took the court to certain passages in the BRE guidelines to suggest that what is known as the ADF test is not a test to be applied when examining the impact of a proposal on existing buildings. Effectively, he submitted that it was an irrelevant consideration and, therefore, should not have been taken into account. At least, that is how he raised the point orally.

It is pertinent to recall that the BRE guidance itself says that it is not an instrument of policy (see para.1.6). It states that it is not mandatory; it is a guide; it is advisory. It is, in other words, not purporting to lay down standards which should be or must be adhered to. It provides instead techniques to guide or assist decision-makers in their assessment of the effect of a development on sunlight or daylight or both matters.

It was unsatisfactory for this point to be raised for the first time today orally and without notice to the other parties. It required additional hearing time to be taken up over and above the time estimate. The court's resources should not be used in that way. Furthermore, it is a matter of elementary fairness that the point ought to have been notified to the other parties in advance of the hearing before seeking permission to raise the new ground.

In any event, both Miss Blackmore and Mr Reed QC, on behalf of the defendant and the interested party respectively, were able to respond to the new point and they pointed out that, in fact, the claimant had previously advanced the contrary point of view, both in the statement of facts and grounds and in the reply. Ironically, the claimant criticised Morris J for failing to have regard to the claimant’s reply. Up until the hearing today the claimant had explicitly accepted that the ADF test was a material consideration. More than that, in 2014 consultants representing objectors to this proposal, possibly including the claimant, had advocated the use of the ADF test.

That this volte face should have happened does not come as any surprise to me because, as Miss Blackmore pointed out, one has to read the whole of the BRE document. There are other passages which Mr Buxton did not cite and which point in a different direction to that which he advances. It is not possible for me to go further into this aspect. What happened does show why it was unsatisfactory for this point to be pulled, like the proverbial rabbit, out of the hat at the hearing today. I would not be prepared to grant permission for the application to be amended at this late stage so as to allow this new point to be pursued, particularly since it runs diametrically opposed to the stance which has been taken by the claimant hitherto.

For all those reasons the application for permission is refused.

If it had been necessary, I would have been prepared to go further and to say that under s.31(3C) of the Senior Courts Act 1981 I do not think that, in any event, if the complaints made had not arisen - any of them or all of them cumulatively – that could possibly have affected the outcome of the application when the officer's report is read fairly as a whole. But it is unnecessary for me to go that far.

The only other matter which has been raised has been the subject of Aarhus costs protection. Subsequent to the order of Morris J, the claimant has filed additional details. Mr Buxton maintains that the cap should be £5,000. It was suggested, on behalf of the defendant and the interested party, that it should be increased because of the information which had been provided but that has not been pursued. It would have required more of the court's time for the matter to be ventilated, and given that no party asked for the time estimate for this case of 30 minutes to be increased - indeed, it now has been well exceeded - it would not have been appropriate to use the court's resources in that way.

The upshot is that I order the application for permission to be dismissed and the costs cap confirmed at £5,000.

This then leads to me considering how Morris J's order on costs should be adjusted. He ordered that the defendant's costs in the sum of £5,000 should be paid by the claimant and that a further £8,000 should be paid to the interested party. Subject to any submissions which Mr Reed would want to make, my approach would be to confirm the first order but to set aside the second one, on the basis that if this matter had proceeded any further, the only party who would have been at risk to pay the costs of the claimant would have been the defendant, it being their decision to defend. It is, therefore, only right that they primarily, in my view, should have their costs in any event.