Bounces Properties Ltd v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Timothy Corner |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] EWHC 735 (Admin) |
| Docket Number | Case No: CO/3192/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 735 (Admin)
Mr Timothy Corner, KC
Sitting as a Deputy High Court Judge
Case No: CO/3192/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Streeten (instructed directly under Public Access) for the Claimant
Matt Lewin (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not appear at the hearing and was not represented.
Hearing date: 22 March 2023
Approved Judgment
This judgment was handed down remotely at 10am on 30 th March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Timothy Corner, KC:
INTRODUCTION
This case concerns an Inspector's decision to dismiss an appeal against the refusal of prior approval under Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) for development involving the conversion of a retail unit into a residential flat. In this judgement I will refer to paragraphs of the Inspector's Decision Letter as “DL1” etc.
The Inspector found for the appellant on all matters save in relation to the adequacy of natural light. He dismissed the appeal because he could not be certain that the proposed windows would be effective in enabling adequate natural light to penetrate into all of the habitable rooms within the proposed flat.
On that issue, the appellant had commissioned a detailed technical report from an expert in the field, Terence A. Rook of Stinton Jones Consulting Engineers LLP, to provide a report (entitled Analysis of Site Layout for Sunlight and Daylight) (“the Daylight/Sunlight Report”). That Report applied the industry standard methodology set out in the applicable Building Research Establishment guidance (Site layout planning for Daylight and Sunlight 2011) (“the BRE Guidance”) including specifying the transmittance of the glass as 0.68 as recommended by the BRE. It concluded that the proposed flat would have adequate daylight.
By virtue of Paragraph W (12) of Part 3 of Schedule 2 of the GPDO, any grant of approval would have been subject to a condition requiring that the development should be carried out in accordance with the details submitted in the Daylight/ Sunlight Report.
The Second Defendant local planning authority (“ the Council”) did not challenge the Daylight/ Sunlight Report or its conclusions. It did not produce any evidence, whether in relation to daylight/ sunlight or otherwise.
Nor did the Inspector disagree with or otherwise question the methodology used in the Daylight/ Sunlight Report. In particular, he did not dispute the application of the BRE Guidance (2011 edition) for assessment of the proposal. Rather, he held at DL14–15 that he could not be certain that the proposed windows would enable adequate natural light to all the habitable rooms in the flat, because of the likely use of obscure glass.
The Claimant contends that in reaching that conclusion, the Inspector erred in law:
(1) First, as the Inspector himself appeared to recognise at DL8, privacy is not a relevant consideration on an application for prior approval under Class M. In taking matters relating to privacy into account, the Inspector misinterpreted Class M, including by failing to recognise the effect of Paragraph W (12), and/or had regard to an immaterial consideration, namely the privacy of occupants of the proposed flat.
(2) Second, his approach was procedurally unfair. He reached conclusions on the impact of installing obscure glass without giving the Claimant the opportunity to comment upon that issue, in circumstances where it was not an issue raised by the Council.
(3) Third, he failed to have regard to a relevant material consideration, erred in fact, and/or reached an irrational conclusion in failing to appreciate that: (1) compliance with the minimum transmittance value relied upon in the Daylight/Sunlight Report was secured by the condition imposed under paragraph W(12) of Part 3; (2), in any event, light transmits better through obscured glass than clear glass; and (3) the window in the external rear façade of the building was not relied upon by the Claimant's expert in assessing the acceptability of the natural light in the habitable rooms of the proposed flat.
LEGISLATIVE BACKGROUND
Under the Town and Country Planning Act 1990 (“the 1990 Act”), planning permission is generally required for the development of land (see section 57(1)). Planning permission may be granted by a development order, or by a local planning authority determining an application made under section 62 (see section 58(1)).
Section 59 empowers the First Defendant to make a development order granting planning permission by the order itself. The current development order which generally applies in England is the GPDO. If a developer is entitled to rely upon the permitted development rights granted by such an order, he generally need not make an application for the grant of planning permission. Section 60(1) empowers the First Defendant to impose conditions or limitations on permitted development rights. In particular, more recent development orders have made the grant of certain permitted development rights subject to the “prior approval” of the local planning authority.
Under the GPDO, Article 3(1) grants planning permission for the classes of development described in Schedule 2.
Class M of Part 3 of Schedule 2 to the GPDO (as it was at the relevant time) is entitled “Class M – Retail or betting office or pay day loan shop to dwellinghouse”. Insofar as relevant, the development it permitted was:
“Development consisting of—
(a) a change of use of a building from—
(i) a use falling within Class A1 (shops) or Class A2 (financial and professional services) of the Schedule to the Use Classes Order;
(ii) a use as a betting office or pay day loan shop, or
(iii) a mixed use combining use as a dwellinghouse with—
(aa) a use as a betting office or pay day loan shop, or
(bb) a use falling within either Class A1 (shops) or Class A2 (financial and professional services) of that Schedule (whether that use was granted permission under Class G of this Part or otherwise),
to a use falling within Class C3 (dwellinghouses) of that Schedule, and
(b) building operations reasonably necessary to convert the building referred to in paragraph (a) to a use falling within Class C3 (dwellinghouses) of that Schedule.”
Paragraph M.1 sets out various exclusions to the application of Class M, which are not relevant in this case.
Paragraph M.2 subjected the grant of permission under Class M to various conditions, including (where the development proposed is development under Class M(a) together with development under Class M(b)) a condition requiring the developer to apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to matters including (insofar as were relevant in this case): (a) transport and highways impacts of the development; (b) contamination risks; (c) flooding risks; and (f) “the provision of adequate natural light in all habitable rooms of the dwellinghouses”. Sub-paragraph (f) was added by the Town and Country Planning (Permitted Development and Miscellaneous amendments) (England) (Coronavirus) Regulations 2020, prior to which adequate natural lighting was not a requirement for the grant of prior approval under Class M.
Paragraph W of Part 3 to Schedule 2 of the GPDO provides in part as follows:
“(1) The following provisions apply where under this Part a developer is required to make an application to a local planning authority for a determination as to whether the prior approval of the authority will be required.
(2A) Where the application relates to prior approval as to adequate light, the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses.
(9) The local planning authority [or, on appeal, the First Defendant] may require the developer to submit such information as the authority may reasonably require in order to determine the application.
(12) The development must be carried out—
(a) where prior approval is required, in accordance with the details approved by the local planning authority [or, on appeal, the First Defendant];
(13) The local planning authority [or, on appeal, the First Defendant] may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval.”
The principle of development may not be considered when assessing an application for prior approval. On the contrary, the only matters which the local planning authority is entitled to consider when assessing such an application are those specifically requiring prior approval as prescribed by Schedule 2 to the GPDO (see Murrell v Secretary of State [2011] 1 P&CR 6 at paras. 44–45).
When an approval is granted, paragraph W (12) of Part 3 of Schedule 2 to the GPDO has effect. It imposes a condition that development permitted pursuant to a prior approval must be carried out in accordance with the details approved (if prior approval is required) or provided with the application (if it is not).
Nor does either section 70 of the 1990 Act or section 38(6) of the Planning and Compulsory Purchase Act 2004 apply to such applications. In assessing an application for prior approval, it is not necessary to have regard to the development plan or the policies in it (see R (Patel) v Secretary of State [2016] EWHC 3354 (Admin) at paras. 52).
FACTS
On 26 March 2021, Omkara Limited (“ Omkara”) submitted to the...
To continue reading
Request your trial