Berwood Homes Ltd, R (on the application of) v London Borough of Bromley

A planning decision may be quashed where the decision-maker fails to have regard to a material consideration or adopts a legally flawed approach to a development-plan policy. Whether an extension is “two or more storeys in height” depends principally on its physical height, bulk and effect on neighbouring properties and the surrounding area. Internal arrangements and intended use may be relevant where the building falls into a borderline category, but a use restriction cannot alter the physical planning effects of a clearly multi-storey structure. A factual mistake may provide a separate ground of review where it causes unfairness, but it commonly overlaps with failure to consider a material fact. The claim was dismissed because the officer’s conclusion that the extension was single-storey was reasonably open to her.

Berwood Homes Ltd sought judicial review of the London Borough of Bromley’s grant of retrospective planning permission to Mr and Mrs Robinson for a garage and games-room extension at Chesham House. The claimant owned the adjoining property and argued that the permission had been granted on inaccurate plans and without proper regard to policy H9 of the development plan.

The principal issues were whether the extension was a development of two or more storeys for the purposes of policy H9, whether the officer had failed to take account of the actual boundary distance, whether the decision involved a material mistake of fact, and whether the claim had been brought promptly.

1. Claim dismissed. The planning officer had made an error in recording the boundary distance as approximately one metre when the actual distance was about 0.45 metres. However, the boundary issue, standing alone, did not invalidate the decision. The officer had visited the site and could assess the physical circumstances as a matter of planning judgment.
2. Policy H9 was concerned with the effect of development on adjoining properties and the surrounding environment. The question whether a building was two or more storeys could not be determined solely by its proposed internal use or by a simple measurement of height. Physical bulk, privacy, overlooking and the building’s general environmental effect were material.
3. Internal arrangements and intended use could nevertheless be relevant where the building was not clearly either single-storey or multi-storey. The condition preventing additional floorspace and the absence of proposed first-floor use were relevant considerations. The officer was entitled to regard the extension as borderline and to conclude that it was single-storey for policy H9 purposes. That conclusion was not irrational in the Wednesbury sense.
4. The court accepted that a mistake of fact causing unfairness might, in an appropriate case, constitute a freestanding ground of review, following the approach discussed in [2004] 2 WLR 1351. The present case was better analysed as an alleged failure to consider material matters, and the mistake-of-fact approach was in any event not applicable on these facts.
5. The claim was brought promptly. Delay under section 31(6) was not established, and alleged prejudice to the interested parties or inconvenience to good administration did not justify rejecting the claim on that ground.
6. The claimant was ordered to pay the defendant’s costs, summarily assessed at £7,500.