Tatham Homes Ltd, R (on the application of) v First Secretary of State & Anor

An inspector may determine an issue not relied on by the local planning authority where that issue was fairly and squarely raised by other participants and the claimant had a reasonable opportunity to address it. Fairness does not require an adjournment merely because the inspector ultimately gives the issue decisive weight.

Planning guidance expressed as a separation-distance guideline is not a rigid legal rule. The decision-maker may assess privacy and amenity in the particular context, including overlooking of private garden space. A challenge alleging perversity faces a high threshold, particularly where the inspector’s site inspection was material.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal against refusal of planning permission for replacing a house with six flats.

The inspector found no harm to the area’s character but considered that overlooking and loss of privacy to a neighbouring property would be unacceptable. The claimant challenged the decision on fairness, failure to consider trees, misinterpretation of the Kent Design guidance, and perversity.

1. Fairness. The application failed on the procedural-fairness ground. Although privacy had not been a reason for refusal and was not a local-authority issue, neighbouring residents had raised it before and at the inquiry. The claimant’s witness addressed it in detail and had an opportunity to respond to the residents’ evidence. The dispute could sensibly be resolved at the site inspection. The claimant was not deprived of a fair opportunity to present its case: Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 and Castleford Homes v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77, [2001] PLCR 470.
2. Relevant considerations. The decision letter had to be read as a whole. The inspector had repeatedly identified the trees and hedge when addressing the site and the proposal. Their absence from the detailed discussion of overlooking did not show that they had been ignored.
3. Planning guidance. Policy EN1(3) and principle 8.6 of the Kent Design guide required protection of privacy and amenity. The 21-metre distance was only a guide and distance alone was a crude measure of privacy. The inspector was entitled to consider the effect on the neighbouring property’s private amenity space and to conclude that the proposed windows and balconies caused unacceptable overlooking.
4. Perversity and outcome. The inspector had considered the matters said to favour permission and was entitled to give decisive weight to the severe privacy harm. His site inspection was particularly important. The conclusion was not one that was unavailable to him. The application was dismissed, with the first defendant’s costs summarily assessed at £5,200.

Not stated in the judgment.