Forster v The Secretary of State for Communities and Local Government & Ors

The possible effect of a planning permission on the viability of a neighbouring business may be a material planning consideration. Where the alleged effect is not self-evident, it must be raised with sufficient particularity and supporting evidence. A speculative risk of future licensing or nuisance proceedings need not be predicted by an Inspector. Planning decision letters are read flexibly, but that does not excuse failure to address a specific and distinct objection that has been sufficiently flagged. A general conclusion that daylight and sunlight effects are not unreasonable does not answer a specific case that loss of light will harm a business use. Failure to address that issue is an error of law.

The appellant, the freehold owner and occupier of the George Tavern, challenged planning permission for the demolition of an adjacent nightclub and construction of a three-storey building containing commercial premises and flats. The Secretary of State’s Inspector also granted related conservation area and listed building consents. The appellant alleged that noise from the new flats might lead to restrictions on the tavern’s activities and that loss of light would damage its location and photography business.

Lindblom J dismissed the appellant’s statutory challenge under the Town and Country Planning Act 1990: [2015] EWHC 2367 (Admin). The appeal concerned whether the Inspector had failed to consider the risks to the business and the specific daylight objection.

The Court of Appeal unanimously allowed the appeal on the light issue only and ordered that the grant of planning permission be quashed.

1. Noise and business viability. The effect of a prospective permission on a neighbouring business may in principle be a material planning consideration. Where the alleged effect is not obvious, however, the issue must be raised before the Inspector with sufficient particularity and supporting evidence to permit an objective and reasoned assessment. General assertions that future complaints might lead to loss of a licence or an injunction were speculative and provided no basis for assessing the risk.
2. The Inspector’s function was to determine planning merits and the public interest. It did not require him to predict the likelihood or outcome of later licensing or private nuisance proceedings. The court also noted that the possible application of the Wednesbury test, [1948] 1 KB 223, arose only hypothetically if an unacceptable-risk case had been made. The appellant had not made such a case.
3. Daylight and sunlight. Planning decision letters are construed with reasonable flexibility, reflecting the approach cited from Bloor Homes East Midlands Ltd, [2014] EWHC 754 (Admin), and Seddon Properties v Secretary of State for the Environment, (1981) 42 P. & C.R. 26. That flexibility did not excuse the Inspector’s failure to address the appellant’s specific objection that loss of light, particularly to the staircase, would damage her location business. The expert material did not objectively resolve that concern, and the Inspector’s general conclusion that there would be no unreasonable effects was inadequate.
4. An unargued point concerning open windows could not independently support the challenge. If material, it should have been directed to the Inspector’s underlying conclusion on noise.
5. Under section 288(5) of the Town and Country Planning Act 1990, the appropriate relief was an order quashing the planning permission.

1. Court of Appeal (Civil Division): Appeal allowed on the daylight and sunlight issue only; the grant of planning permission was quashed: [2016] EWCA Civ 609.
2. High Court, Administrative Court, Planning Court: Lindblom J dismissed the statutory challenge to the planning permission: [2015] EWHC 2367 (Admin).