Majed, R (on the application of) v London Borough of Camden & Anor

A local planning authority’s adopted statement that adjoining occupiers affected by specified development will receive notification may create a legitimate expectation. An administrative failure to give the promised notice breaches that expectation.

The breach does not necessarily invalidate the resulting planning permission. When determining relief, the court may consider any prejudice caused by the omission, the planning merits, the position after development has occurred and the prejudice that quashing would cause to an innocent third party. Non-statutory planning guidance must be read practically and as a whole, rather than as if it were legislation. A factual mistake is legally material only if it affects consideration of a material matter or introduces an immaterial consideration.

The local planning authority granted permission for a first-floor side extension to a neighbouring house. Its adopted Statement of Community Involvement provided that adjoining occupiers likely to be affected would receive notification. Because of an administrative error, the appellant received neither a letter nor actual notice of the application before permission was granted.

The appellant sought judicial review. Permission was refused on paper and following an oral renewal, but Laws LJ subsequently granted permission and directed that the substantive application be heard by the Court of Appeal. By then, the extension had been completed and occupied.

The issues concerned legitimate expectation, an erroneous separation distance in the officer’s report, the interpretation of conservation guidance, the adequacy of the authority’s summary reasons and the appropriate remedy.

1. Appeal allowed to a limited extent. The appellant had a legitimate expectation that he would be notified of the planning application. The Statement of Community Involvement clearly promised notification to adjoining occupiers likely to be affected and stated that the council was required to follow it. The promise and established practice went beyond the statutory minimum and were underpinned by the statutory scheme. No officer exercised a discretion to exclude the appellant; notification failed solely through administrative error.

2. The officer’s statement that the proposed development was approximately 25 metres from the nearest neighbouring property was factually wrong. An error of fact can amount to an error of law if it causes a material consideration to be overlooked or an immaterial matter to be considered. This error was immaterial. The extension’s blank wall caused no overlooking, the precise distance did not affect the conservation-area assessment, and the officer was entitled to assess daylight and sunlight from his site inspection without detailed calculations.

3. Conservation guideline H43 did not preclude the extension. Non-statutory conservation guidance is not an enactment and must be read as a whole, practically and without pedantic legalism. The guideline concerned the infilling of gaps and front building lines. It did not address this backland development, where neither feature existed.

4. The adequacy of summary reasons depends on the proposal’s complexity, contentiousness and the number and difficulty of the issues requiring resolution. There is no mechanistic formula. The permission identified the relevant development-plan policies and incorporated the officer’s report, which adequately addressed the material issues. Even a failure to give reasons would not automatically require quashing, applying R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 and R (Smith) v Cotswold District Council [2007] EWCA Civ 1341.

5. Quashing was refused. The rule in Simplex GE (Holdings) v Secretary of State for the Environment (1989) 57 P&CR 306, concerning an erroneous refusal of permission, did not govern these materially different circumstances. The extension had been completed and occupied. There was no development-plan objection or real planning harm, while removal would seriously prejudice the interested party. Enforcement was inconceivable. The court instead declared that the authority had breached the appellant’s legitimate expectation. Moore-Bick LJ and Arden LJ agreed with Sullivan LJ.

1. Court of Appeal (Civil Division): Allowed the appeal to the limited extent of declaring that the local planning authority had breached the appellant’s legitimate expectation. It refused to quash the planning permission.

2. Permission stage: Laws LJ granted permission to apply for judicial review and directed that the substantive application be heard by the Court of Appeal.

3. High Court: Wilkie J refused permission on the papers. HHJ Denyer, sitting as a deputy High Court judge, refused permission following an oral renewal hearing.