Smith, R (on the application of) v Secretary of State for Communities & Local Government

In a planning challenge, the court does not substitute its own view on the merits of a planning judgment. An Inspector’s decision will withstand review where there is material capable of supporting a rational distinction between the proposed development and existing development, and the conclusion is not one which no reasonable decision-maker could reach. A balcony added to a dormer window may rationally be treated as materially different from the dormer window alone, particularly where it creates additional visual harm or overlooking. Planning judgments concerning the scale and character of that harm belong primarily to the Inspector. A successful defendant is ordinarily entitled to reasonable costs; there is no unfettered right to challenge executive action without exposure to proportionate costs.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision letter dated 20 March 2008. The Inspector had dismissed the challenge to the refusal of permission for a balcony attached to a rear dormer window at the claimant’s terraced house.

The claimant argued that other properties in the terrace had dormer extensions which were themselves not fully consistent with the original design. He contended that it was irrational to reject the balcony on design and privacy grounds, and referred to observations in an earlier planning decision suggesting that further proposals might be explored. The issues were whether the Inspector had acted irrationally and, after dismissal of the claim, what costs order was appropriate.

1. The application under section 288 was dismissed. The Inspector had rationally distinguished between the existing dormer extensions and the proposed addition of a balcony. The balcony was capable of being regarded as an incongruous and overly prominent addition which caused further harm to the style and form of the terrace.

2. The court’s function was limited to reviewing legality and rationality. It was not entitled to substitute its own view on the merits of the planning decision or to decide whether the degree or character of visual harm was sufficient to justify refusal. Those matters were pre-eminently matters of planning judgment for the Inspector, provided there was material capable of founding the decision.

3. The privacy objection was also rationally available. A balcony created the potential for people to stand outside and overlook neighbouring gardens. The Inspector was entitled to conclude that this intrusion would be more intrusive and uncomfortable than views from the existing bedroom window and door, notwithstanding an obscure-glazed privacy screen.

4. The observations in the earlier planning decision did not amount to a commitment that a balcony would be acceptable. They arose in the context of the enforcement appeal and merely indicated that further proposals could be explored.

5. The Secretary of State was entitled to reasonable costs as the successful party. The claimant had no unfettered right to place the executive at risk of costs when bringing proceedings. The claimed costs were reduced as disproportionate, particularly the charge for 18.8 hours of solicitors’ work on an internal advice. Costs were summarily assessed at £2,630.