Venn v Secretary of State for Communities and Local Government

Emerging planning policies may be taken into account with weight proportionate to their stage of preparation, unresolved objections and consistency with the National Planning Policy Framework. Where an emerging policy is relied on by the parties, an inspector need not give separate reasons for its classification if the relevant policy criteria are undisputed and have been addressed. Planning guidance on separation distances may be applied flexibly where its wording and context permit. An inspector must consider material submitted by a person liable to be adversely affected by a proposed development. Failure to do so may be unfair, but the decision need not be quashed where there is no real possibility that the material would have changed the outcome. Plans containing inaccuracies do not create a material irregularity unless the inaccuracies are material to the issues decided.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision allowing a developer’s appeal under section 78 and granting permission for a single-storey detached house in a rear garden at 47 Dundalk Road, Lewisham. The claimant lived in the neighbouring ground-floor flat and objected on grounds including emerging planning policy, separation distances, daylight and sunlight, procedural fairness and inaccurate plans.

The inspector had not received an independent lighting expert’s full report, although he had received a summary and other material. The central questions were whether the inspector had erred in law, failed to give adequate reasons, acted irrationally or unfairly, or relied on materially inaccurate plans.

1. Claim dismissed. The inspector’s decision was not quashed. The claimant established procedural unfairness because material submitted by a person liable to be adversely affected by the development had not been placed before the inspector. The Secretary of State was responsible for the administrative failure.
2. The inspector was entitled to take the emerging Development Management Local Plan Further Options Report into account under paragraph 216 of the National Planning Policy Framework. The weight given to an emerging policy was a matter for the inspector. Since the Council and the inspector treated the proposal as infill development, and the relevant criteria had been addressed, the inspector gave adequate and intelligible reasons.
3. The Residential Standards Supplementary Planning Document stated that a nine-metre separation distance should normally be provided, but also required flexible interpretation according to context. The inspector was entitled to conclude that the shortfall did not cause undue harm because of the site levels, the fence, the proposed building’s height and the continuing outlook.
4. The inspector was not irrational in deciding the appeal on the material available to him. He had the officers’ assessment, the claimant’s summary of the expert report, the appellant’s lighting material and his own site observations.
5. Applying the approach in Bolton Metropolitan Borough Council v Secretary of State for the Environment 61 P&CR 343, the unfairness did not require quashing because there was no real possibility that the full report would have produced a different result. Six considerations supported that conclusion: the report had been before the planning committee; officers had addressed the lighting issue; the summary before the inspector assisted the claimant; light was not a reason for refusal; the inspector had inspected the site; and the report’s conclusions were qualified.
6. The alleged inaccuracies in the plans did not amount to material irregularity or unfairness. None was shown to affect a measurement material to the issues determined.

The claim was brought at first instance under section 288 of the Town and Country Planning Act 1990 against an inspector’s decision allowing a section 78 planning appeal. Permission to appeal was granted on two grounds, concerning the emerging policy and the materiality and fairness consequences of the missing expert report.