Norton & Ors, R (on the application of) v London Borough of Lambeth

In a planning judicial review, a public authority that chooses to apply technical guidance must apply it correctly. Reliance on an inapplicable assessment method is taking into account an irrelevant consideration and may justify quashing the decision. A promptness requirement for judicial review is assessed in the particular circumstances, balancing the claimant’s explanation and arguability against the public interest in certainty and any demonstrated prejudice. An assurance that a planning application will be decided by committee does not necessarily create a binding legitimate expectation where the claimant learns of a change to delegated decision-making before the decision and has an opportunity to make further representations.

Ten local residents challenged Lambeth London Borough Council’s decision to grant planning permission for two houses. Collins J directed a rolled-up hearing concerning permission and the merits. The claim was brought on the last day of the three-month period, raising an issue of promptness. The substantive grounds concerned the Council’s use of a 45-degree rule derived from BRE 209 when assessing daylight and sunlight, and an alleged legitimate expectation that the application would be determined by the planning committee rather than under delegated authority.

1. Delay. Although filing on the last day of the three-month period was not objectively prompt, the claimants had a plausible explanation. They were largely unrepresented, had needed to coordinate numerous objectors, obtained legal advice promptly once instructions were assembled, and discovered the alleged technical error only shortly before issuing proceedings. The alleged prejudice to interested parties was speculative, and development had not begun. Permission was therefore not refused for delay.
2. BRE 209 and the 45-degree rule. The delegated panel relied on the 45-degree rule when concluding that the previous reason for refusal had been overcome. On the evidence, that method was inapplicable to the French windows, which directly faced the proposed development. The panel had chosen to use BRE 209 and was therefore required to use it correctly. It was unnecessary for the claimants to establish an independent duty to apply the 25-degree rule or to undertake a detailed assessment. The Council had taken into account an irrelevant consideration. The decision was quashed on this ground, leaving the Council to reconsider the application using the correct approach.
3. Legitimate expectation. Assurances that the application would be decided by the planning committee did not bind the Council in the circumstances. The claimants learned before the decision that delegated authority would be used and had an opportunity to make further representations. The change was discourteous, but it did not amount to an error of law.
4. The claim succeeded on the technical planning ground and failed on legitimate expectation. The application was granted in part and the planning permission decision of 1 December 2006 was quashed.

This was a first-instance judicial review. Collins J had directed a rolled-up hearing on 24 April 2007; Sir Michael Harrison, sitting as a Deputy High Court Judge, determined permission and the merits.