Sager House (Chelsea) Ltd, R (on the application of) v First Secretary of State & Anor

Applications under section 288 of the Town and Country Planning Act 1990 review legality, not the planning merits. Issues involving visual impact, privacy and sense of enclosure are ordinarily matters of planning judgment, particularly where the inspector has carried out a site inspection. The court should intervene only for legal error, inadequate reasons or irrationality meeting the demanding Wednesbury threshold.

Policy guidance does not usually prescribe inflexible separation standards. A stated distance, such as 18 metres, remains a factor in an overall assessment. An inspector may prefer his own informed judgment to competing expert evidence, provided the principal issues are addressed and intelligible reasons are given.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of its appeal concerning a proposed 61-apartment redevelopment of the Power House site at Alpha Place, Chelsea. The local planning authority had failed to determine the planning application within the prescribed period.

The inspector identified the effect on the character and appearance of the locality, including two adjoining conservation areas, and the living conditions of neighbouring occupiers as the main issues. He refused permission because of harm to views and the setting of the Royal Hospital Conservation Area, and because of overlooking and an increased sense of enclosure. The claimant challenged the decision on grounds including misapplication of planning policy, irrationality, inadequate reasons, evidential unfairness, bias and breach of Article 8.

1. The application was dismissed. The inspector’s decision disclosed no material error of law. The claimant’s extensive grounds largely sought to reargue planning merits, which was impermissible under section 288 [2], [72], [123].
2. The inspector was entitled to treat the site-specific Planning Guidelines as supplementary planning guidance and to give them significant weight. Although there were shortcomings in their preparation, consultation and adoption requirements had substantially been met, and the inspector’s assessment was not irrational [20]–[33].
3. The inspector’s assessment of longer views from the Royal Hospital Conservation Area was a matter of planning judgment. He was entitled to identify those views as important despite their omission from earlier policy documents. His conclusion that the benefits did not outweigh the harm was adequately reasoned [34]–[53].
4. Policy CD63 required consideration of views out of the conservation area. The inspector was technically wrong to describe the policy as breached merely because harm was found, but the error was immaterial because the harm, combined with the effects on privacy and enclosure, justified refusal [57]–[60].
5. Privacy guidance referring to an 18-metre distance did not create a fixed standard. The inspector was entitled to consider the number and levels of windows, possible downward views, the single-aspect accommodation, balconies, planting, the building’s size and form, and the particular relationship between the buildings [80]–[102].
6. Sense of enclosure was a subjective matter involving informed planning judgment. The inspector considered the expert evidence, undertook a site assessment and gave adequate reasons for finding an unreasonable burden on the Flood Street properties and Flat 5, Chesil Court [103]–[111].
7. The Article 8 points were not raised at the inquiry. In any event, the inspector had undertaken the necessary balancing exercise by weighing the scheme’s benefits against the identified harm [112]–[116]. The bias allegation failed the fair-minded and informed observer test [118]–[119].
8. The claimant was ordered to pay the first defendant’s costs on the indemnity basis and the second defendant’s costs on the standard basis [217]–[223]. Permission to appeal was refused [224]–[240].