Ali v First Secretary of State & Anor

On a statutory challenge to a planning inspector’s decision, the court may intervene only for an error of law. A decision is not unlawful merely because the judge considers it harsh, factually questionable or capable of being decided differently. Planning judgments about overlooking, outlook, overshadowing, living accommodation and amenity space are matters for the designated decision-maker, provided the decision is reasoned and the evidence and policies have not been misunderstood or misapplied. There is no hard and fast rule determining when interference with neighbouring property becomes a planning objection. Relevant supplementary planning guidance may receive substantial weight, while draft consultation material may properly receive limited weight.

The applicant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dated 16 August 2005. The inspector had upheld the London Borough of Southwark’s refusal of planning permission for a small one-bedroom dwelling intended to replace an existing garage.

The inspector accepted that the proposal would not harm the character and appearance of the area, but found adverse effects on neighbouring living conditions through loss of outlook and overshadowing, together with inadequate internal accommodation and external amenity space. The central issue was whether those conclusions disclosed an error of law.

1. Application dismissed. The inspector’s decision was not vitiated by an error of law. The applicant was ordered to pay the respondents’ costs, assessed at £3,750.
2. Under section 288 of the Town and Country Planning Act 1990, the court may interfere only where an error of law is established. A conclusion which appears harsh, factually difficult to justify or arguably wrong is not for that reason unlawful. The inspector is entrusted with the planning judgment.
3. There is no hard and fast guideline identifying the degree of interference with light, outlook or neighbouring gardens that amounts to a proper planning objection. In an urban environment some interference is inevitable. The question is whether, on the facts, the effect is sufficiently significant. That is a matter for the decision-maker’s judgment, provided the reasons disclose the basis of the conclusion.
4. The inspector was entitled to take account of the possible removal of an existing fence and canopy when assessing the proposal’s additional and more permanent overshadowing. The small size of the affected gardens was also a relevant consideration. The inspector’s conclusion was rationally open to him.
5. The inspector properly distinguished a one-bedroom house from a bedsit when applying the relevant residential standards. He was entitled to give considerable weight to the final supplementary planning guidance attached to the relevant policy, and limited weight to an unfinished consultation document. His conclusions that the proposal fell below the minimum overall accommodation standard and lacked sufficient external amenity space disclosed no misdirection or misunderstanding of the evidence.
6. The planning system’s compatibility with the Human Rights Act was not capable of assisting the applicant once the planning challenge failed on its merits.

1. Inspector: On 16 August 2005, the planning inspector upheld the London Borough of Southwark’s refusal of planning permission.
2. High Court (Administrative Court): The statutory challenge was dismissed under section 288 of the Town and Country Planning Act 1990, with costs of £3,750.