Jones & Anor, R (on the application of) v City & County of Swansea

A planning authority must take into account a matter which has a real possibility of affecting its decision. A published planning guideline may constitute a material consideration, particularly where the objector identifies a significant apparent breach. The court need not establish that the consideration would have changed the result; a real, rather than fanciful, possibility is sufficient. Even where a planning decision is unlawful for failure to consider a material matter, relief may exceptionally be withheld. A subsequent reconsideration conducted with an open mind may justify refusing a quashing order where the authority has considered the relevant material and quashing would achieve nothing practical.

The claimants sought judicial review of the defendant local authority’s grant of planning permission for extensions to a neighbouring dwelling. They objected that the proposed first-floor extension would overlook their home and breach the authority’s published guidance on minimum distances between windows.

The officer’s report referred to privacy but did not assess whether the proposal breached the relevant guideline distances. After permission to bring judicial review proceedings was granted, the authority reconsidered the application, placed the disputed distances before the planning committee, and arranged a site visit. The committee confirmed its original decision. The central issues were whether the authority had failed to take account of a material consideration and, if so, whether relief should nevertheless be withheld.

1. Failure to consider a material matter. The claimants’ objection squarely raised the alleged breach of the published guidance. The authority was therefore required to make an overall assessment which included whether the proposal complied with the guideline distances.
2. The evidence established that at least one proposed window was materially closer than the advisory distance. The officer’s report did not show that this issue had been assessed, and the authority did not suggest that the committee had undertaken the assessment itself. The matter was potentially relevant to the decision.
3. Applying the principles in Bolton Metropolitan Borough Council v Secretary of State for the Environment and another 61 P&CR 343, the question was whether consideration of the breach might have led to a different result. The threshold was a real, not fanciful, possibility. Published guidelines promoted consistency and clarity, and planning committees might reject proposals which breached them even where an officer recommended approval. The ground of challenge was therefore made out.
4. The court declined to determine conclusively whether the claimants’ interpretation of the guidance was correct. The guidance was intended to be applied flexibly, rather than with mathematical precision, and the authority’s approach was not shown to be unlawful.
5. Relief. An unlawful decision does not automatically require a quashing order. The authority’s later reconsideration had been conducted with an open mind. The committee had been informed of the relevant distance, had the competing calculations and objection before it, and had visited the site. That reconsideration provided a compelling exceptional reason to withhold relief, since quashing the permission would merely require a further consideration which was virtually certain to produce the same result.
6. The claim succeeded on the validity issue but no quashing order was granted. The court indicated that, in the unusual circumstances, the appropriate costs order might be that there be no order as to costs.